Gujarat High Court
Popatlal Mohanlal Vachheta vs State Of ... on 12 February, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/723/1997 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 723 of 1997
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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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POPATLAL MOHANLAL VACHHETA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR KETAN D SHAH, 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 : 12/02/2015
CAV JUDGMENT
Page 1 of 11
R/CR.A/723/1997 CAV JUDGMENT
1. The present appellant has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 8.7.1997 passed by the learned Addl. City Sessions Judge, Court No. 20, Ahmedabad in Sessions Case No. 392 of 1993, whereby, the learned trial Judge has convicted the appellant under sec. 363 of IPC and sentenced to undergo R/I for two years and to pay a fine of Rs. 500/-, in default, to undergo further S/I for 15 days, which is impugned in this appeal.
2. The brief facts of the prosecution case is as under:
2.1 That the prosecutrix - PW-7 is the daughter of the complainant, residing outside Delhi Darwaja, Ahmedabad, with his family. The prosecutrix - PW-7, as alleged, was kidnapped by the accused on 24th February, 1993, who happens to be the cousin of one of the closest friends of the prosecutrix. The accused being the relative of the friend of the prosecutrix, developed intimacy with the prosecutrix, which resulted into taking away of the minor girl on the aforementioned day at around 3.00p.m., with an intention to have illicit intercourse with her.Page 2 of 11 R/CR.A/723/1997 CAV JUDGMENT
2.2 On inquiring about the prosecutrix, her whereabouts were not found, therefore, a complaint before the Court of the Metropolitan Magistrate, Ahmedabad was filed which was sent to the police for inquiry, being M. Case No. 17/1993, for the offence under section 363, 366 and 376 of the Indian Penal Code. The Investigating Officer started investigation and during the course of investigation, the accused and the prosecutrix came to Shahpur Police Station on 11.3.1993, of their own. 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 Metropolitan Magistrate, committed the case to the Court of Sessions, which was numbered as Sessions Case No. 392/1993.
3. The accused was charged vide Ex. 1. 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. PW-1 Ramsing Baldevsinh Parmar Ex. 9 Page 3 of 11 R/CR.A/723/1997 CAV JUDGMENT
2. PW-2 Manubhai Somabhai Borisa Ex. 11
3. PW-3 Bhalaram Godaji Meghwala Ex. 12
4. PW-4 Dr.Vinodkumar Lajjaram Gupta Ex. 17
5. PW-5 Manojkumar Nandulal Bhavsar Ex. 20
6. PW-6 Himmatsing Mansing Makwana Ex. 22
7. PW-7 Gitaben Ramsingbhai Darbar Ex. 23
8. PW-8 Banvarilal Puranmal Sharma Ex. 25
9. PW-9 Dr. Jayendrabhai Ratilal Modi Ex. 28
10. PW-10 Mahipatram Dalpatram Raval Ex. 30
11. PW-11 Santbax Vidhyaprasad Mishra Ex. 31
5. The prosecution has also produced the following documentary evidence before the trial Court.
1. Complaint Ex. 10
2. Panchnama of clothes of the accused Ex. 15
3. Panchnama of the clothes of the prosecutrix Ex. 16
4. Arrest Panchnama Ex.
5. Birth certificate of the accused Ex. 21
6. Letter sent to FSL Ex. 26
7. Report of FSL Ex. 32
8. Medical report of the accused Ex. 19
9. Receipt of the FSL Ex. 27
10. Medical report of prosecutrix Ex. 18
11. Medical report and certificate of age of the prosecutrix Ex. 29
12. Passengers register of Hotel Nilkanth Ex. 13 Page 4 of 11 R/CR.A/723/1997 CAV JUDGMENT
13. Abstract from the register of Archana Guest House Ex. 24
14. Abstract from the School Register with regard to age of the prosecutrix Ex. 34
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 Addl. City Sessions Judge, Court no. 20, Ahmedabad, vide impugned judgment and order dated 8.7.1997 held the appellant - accused guilty to the charge levelled against him under sec. 363 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 Addl. City Sessions Judge, Court No. 20, Ahmedabad, the present appellant has preferred this appeal.
9. Heard Mr. Ketan D. Shah learned advocate for the appellant and Ms. Monali Bhatt learned APP for the respondent-State.Page 5 of 11 R/CR.A/723/1997 CAV JUDGMENT
10. Mr. Shah 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. Shah 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 further submitted that the learned trial Judge should not have believed the deposition of prosecutrix so far as sec. 363 of IPC is concerned when the learned Judge has observed that it isnot safe to be 100% dependable on the testimony of the prosecutrix and to consider her evidence to be sterling quality. It is submitted that the learned trial Judge should have considered that Nanda, who is a friend of the prosecutrix and material witness, has not been examined by the prosecution. He further submitted that the learned trial Judge should have considered the statement of prosecutrix before the police on Page 6 of 11 R/CR.A/723/1997 CAV JUDGMENT 11.3.1997 which clearly shows that appellant-
accused has not taken or enticed her. Mr. Shah submitted 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 so far as it relates to the conviction of the appellant accused for the offence under section 363 of IPC.
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 to undergo rigorous imprisonment of 2 years, 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. The factum of her going with the accused is admitted. There is no proof except the birth register and when she has Page 7 of 11 R/CR.A/723/1997 CAV JUDGMENT rightly gone with the accused from one place to other even in navratri, and they were in love, and therefore, no offence under section 363 of IPC is made out against the accused. The employee of Archana Guest House also shows 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 of IPC, and therefore, the conviction under section 363 of IPC cannot be sustained in light of the decision in the case of Bhartiben 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 would apply to the Page 8 of 11 R/CR.A/723/1997 CAV JUDGMENT 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. It further emerges from the record that she was acquainted with the accused and they were meeting outside their houses. There appears to be a pre-planned arrangement for her to elope with the accused. In that view of the matter, the conviction under section 363 of IPC requires to be quashed and set aside.
14. The finding of fact as far as kidnapping is concerned, the parents also have categorically mentioned that they were aware that the accused was in relationship with the prosecutrix. The learned trial Judge ought not to have used the name of the prosecutrix in the judgment. Be that as it may. The incident occurred on 24.2.1993,there is a delay of 8 days. Be that as it may. The age of the prosecutrix was not Page 9 of 11 R/CR.A/723/1997 CAV JUDGMENT proved. In cross-examination, the complainant has denied of having known of any love affairs between the accused and the prosecutrix. He has admitted that after knowing this fact from her close friend-Nanda, the same has been incorporated in the complaint filed before the court. He has further admitted of not having mentioned his going to the police station, as deposed by him before the Court. He has categorically denied of having concocted the certificate of birth registration because of influence in the office of Ahmedabad Municipal Corporation. A further suggestion has also been made in the cross-examination that he was aware of the affairs between the accused and his daughter-prosecutrix.
15. The fact that the accused and prosecutrix were acquainted with each other was known to the parents also. In this case, the learned trial Judge has gone off-board in thinking that this was a case of non-consensus elopement and has gone on the owner of the family. This, in my view, was not called for. The fact that the learned trial Judge did not believe that offence under sec. 366 was committed, and thus, even no offence or ingredients of section 361 of IPC are proved as he has not enticed the minor nor as he taken her away from the lawful guardianship of Page 10 of 11 R/CR.A/723/1997 CAV JUDGMENT the minor. Thus, it cannot be said that any offence is committed on the touch-stone of the decisions of the Apex Court, as mentioned hereinabove.
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 Court are not only unjust but also improper and hence, the judgment and order dated 8.7.1997 passed by the Additional City Sessions Judge, Court no. 20, Ahmedabad in Sessions Case No.392/1993 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 8.7.1997 passed by the learned Addl. City Sessions Judge, Court No. 20, Ahmedabad in Sessions Case No. 392/1993 is hereby quashed and set aside. Bail and bail bond stands cancelled. As he is on bail, he need not to surrender before the Jail Authority as the punishment is quashed. R & P to be sent back to the trial court forthwith.
(K.J.THAKER, J) mandora Page 11 of 11