Gujarat High Court
Sureshbhai Maganbhai Vaghela ... vs State Of ... on 5 August, 2016
Author: G.B.Shah
Bench: G.B.Shah
R/CR.A/742/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 742 of 2014
With
CRIMINAL APPEAL NO. 1488 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
====================================
1 Whether Reporters of Local Papers may be allowed to YES see the judgment?
2 To be referred to the Reporter or not? YES 3 Whether their Lordships wish to see the fair copy of the NO judgment?
4 Whether this case involves a substantial question of NO law as to the interpretation of the constitution of India, 1950 or any order made thereunder?
==================================== SURESHBHAI MAGANBHAI VAGHELA (TADPADA)....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ==================================== Appearance:
In Cr. A. No. 742 of 2014:
MR SHAILESH C SHARMA, ADVOCATE for the Appellant(s) No. 1 MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1 In Cr. A. No. 1488 of 2014:
MR ASHISH M DAGLI, ADVOCATE for the Appellant(s) No. 1 MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1 ==================================== Page 1 of 44 HC-NIC Page 1 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT CORAM: HONOURABLE MR.JUSTICE G.B.SHAH Date : 05/08/2016 COMMON CAV JUDGMENT
1. As the common judgment and order are under challenge in the present appeals, the same were heard together and are being decided by this common judgment and order.
2. Present appeals assail the judgment and order dated 07/03/2014, passed by the learned 6th Additional Sessions Judge, Nadiad, in Sessions Case No. 111 of 2013, whereby, the present appellants - original accused came to be convicted for the offences punishable under Sections 363 and 366 of the Indian Penal Code, 1860 (for brevity, 'the IPC'). The appellant herein - original accused No. 1 was also convicted for the offence punishable under Section 376 of the IPC. For the offence punishable under Section 363 of the IPC, they were sentenced to undergo simple imprisonment (SI) for two years and fine of Rs.1,000/ each and in default of payment of fine, to undergo further SI for 10 days and for the offence punishable under Section 366 of the IPC, to undergo SI for two years and fine of Rs.1,000/ each and in default of payment of fine, to undergo Page 2 of 44 HC-NIC Page 2 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT further SI for 10 days. For the offence punishable under Section 376 of the IPC, the appellant herein - original accused No. 1 was sentenced to undergo SI for seven years and fine of Rs.2,000/ and in default of payment of fine, to undergo further SI for 10 days. All the sentences were to run concurrently. Accordingly, Criminal Appeal No. 742 of 2014 has been filed by the accused No. 2 whereas, the Criminal Appeal No. 1488 of 2014 has been filed by the accused No. 1 against conviction. For the sake of convenience, the parties are hereinafter referred to as per their original status.
3. Brief facts of the prosecution case are that on 02/02/2013 at about 18:00 hours, the accused allegedly kidnapped the minor daughter of the complainant, aged about 15 years and 04 months, from his lawful guardianship, giving false temptation, knowing it to be likely that she will be forced or seduced to illicit intercourse, made her to sit on a motorcycle and took her to a lake situated at Village: Mahudha and thereafter, at Village:
Sarsa and the accused No. 1 allegedly raped her repeatedly and for the said offence, a complaint for the offence punishable under sections 363, 366 and 376 r/w. 114 of the IPC came to be lodged against them.
Page 3 of 44 HC-NIC Page 3 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT 3.1 Pursuant to the complaint, investigation was carried out. After investigation, chargesheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court at Nadiad. The trial Court framed charge against the accused.
The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the original accused, the prosecution has examined following witnesses and produced following documentary evidence, as under:
Sr. Name Exh.
ORAL EVIDENCE
1 PW1 Dr. Truptiben Gunvantbhai Prajapati 16
2 PW2 Vitthalbhai Manibhai Thakore 25
3 PW3 Victim 27
4 PW4 Jashiben Vitthalbhai Thakore 28
5 PW5 Jitubhai Vitthalbhai Thakore 29
6 PW6 Bharatbhai Chandubhai Thakore 30
7 PW7 Jashbhai Ambalal Patel 31
8 PW8 Vinodbhai Chandubhai Thakore 32
9 PW9 Pintubhai Maganbhai Thakore 36
10 PW10 Rasulmiya Isamiya Malek 40
11 PW11 Ashokbhai Ramabhai Rohit 42
12 PW12 Shaileshbhai Harmanbhai Rathod 43
13 PW13 Dineshbhai Prabhatbhai Sodha 45
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R/CR.A/742/2014 CAV JUDGMENT
14 PW14 Jahirhussain Ahemadmiya Malek 46
15 PW15 Manharbhai Bhaylalbhai Patel 50
16 PW16 Dhirajkumar Chandulal Patel 51
17 PW17 Urmiben Kanaiyalal Parmar 54
18 PW18 Dhruvrajsinh Rajendrasinh Gohil 57
19 PW19 Rajubhai Gandabhai Desai 60
DOCUMENTARY EVIDENCE
1 Complaint of the complainant dated 03/02/2013 26
2 Panchnama of seizure of motorcycle used in the 41
crime
3 Panchnama of clothes put on by the complainant 37
4 Medical Certificate of the victim 18
5 Medical Certificate of the accused 20
6 Despatch Note 61
7 Receipt of FSL as to muddamal 62
8 Letter of FSL 63
9 Report of FSL 64
10 FSL Serological Report 65
11 Birth Certificate of the victim 52
12 Birth Certificate issued by the school in favour of 55
the victim
13 Copy of extract of register as to registration of 53
births and deaths
3.2 At the end of the trial, Further Statements of the accused under Section 313 of Code of Criminal Procedure, 1973 (for brevity, 'the Code') were recorded in which they denied the evidence forthcoming on the record and stated that a false case has been filed against them. Thus, after recording abovereferred Further Page 5 of 44 HC-NIC Page 5 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge came to the aforesaid conclusion by the impugned judgment and order, giving rise to prefer the present appeals.
4. Heard Mr. Shailesh C. Sharma, the learned advocate for the appellant - original accused No. 2 in Criminal Appeal No. 742 of 2014 and Mr. Ashish M. Dagli, the learned advocate for the appellant - original accused No. 1 in Criminal Appeal No. 1488 of 2014 and Ms. Reeta Chandarana, the learned Additional Public Prosecutor, for the respondent State. 4.1 The learned advocates for the appellants herein - original accused have contended that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the accused and thereby, the learned trial Judge has erred in coming to such a conclusion. They took this Court through the oral as well as the entire documentary evidence on record.
Page 6 of 44 HC-NIC Page 6 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT 4.2 So far as the accused No. 1 is concerned, learned advocate Mr. Dagli, drawing attention of the Court to the deposition of the complaint at exh. 25, contended that it transpires from the averments made in the examinationinchief that the complainant had lodged the complaint upon a statement of one pan shop owner and he had no personal knowledge about the incident and the role played by the accused and the statement of the said pan shop owner was neither recorded while investigation nor had he been examined as a witness during the course of trial. 4.3 Mr. Dagli further submitted that in the instant case, the learned trial Judge has materially erred in holding that at the time of the alleged incident, the victim was a minor in spite of there having sufficient evidence on record to substantiate the fact that the victim was above the age of 16 years at the time of occurrence of the alleged incident. In this regard, he invited attention of the Court to the deposition of complainant - PW2 Vitthalbhai Manibhai Thakore, recorded at exh. 25, more particularly, the crossexamination and contended that the complainant had married at the age of 18 years and has specifically admitted that he is aged 45 years while recording of the evidence and his elder son, Jitu, was born after two years of his marriage, PW5 Jitubhai Page 7 of 44 HC-NIC Page 7 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT Vitthalbhai Thakore has shown his age as 21 years and the victim was younger to Jitubhai by four years and accordingly, in any case, the victim was more than 16 years of the age when the alleged incident had taken place and this fact, the learned trial Judge has failed to consider in its true perspective. Moreover, he submitted that there is material contradiction in the evidence as to the birth date of the victim for the reason that in his deposition, the complainant has admitted that after two years of the birth of the victim, they had another girl child, who had died within a short time of her birth and looking to the Birth Certificate, stated to be of the victim, produced at exh. 52, it does not specify the name of the child and the complainant, presumably has produced the Birth Certificate of her another girl child, who died in short, everywhere, specifying it to be of the victim. Moreover, no Ossification Test, to ascertain the age of the victim, had been conducted by the prosecution. The learned advocate for the accused No. 1 submitted that, thus, considering the age of the complainant, the age of the brother of the victim - PW5 Jitubhai, who had shown his age as 21 years and the fact of birth of the victim after four years of the birth of her said brother Jitu together with the fact of birth of another girl child after two years of the birth of the victim who had died later on, Page 8 of 44 HC-NIC Page 8 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT the age of the victim can easily be said to be more than 16 years at the time of incident in question and the learned trial Judge has committed error in not considering these aspects in true and proper perspective and has wrongly held that the victim was minor at the time of incident in question.
4.3 The learned advocate for the accused No. 1 further submitted that as per the deposition of the victim at exh. 27, the incident had occurred at Village: Khambholaj, however, no panchnama had been carried out of the said place. Moreover, a further perusal of the deposition of the victim reveals that her undergarments had got dirty during the incident, however, no sperm marks found to have been there on the same on analysis and the said fact is substantiated by the deposition of PW1 Dr. Truptiben Gunvantbhai Prajapati at exh. 16, who has, in her crossexamination, clearly stated that there found no sperm marks on the clothes of the victim. The learned advocate for the accused No. 1 further submitted that if the deposition of the Investigating Officer i.e. PW19 Rajubhai Gandabhai Desai at exh. 60, is taken into consideration, in his crossexamination, he has clearly deposed that no blood stains or sperm marks were found from the clothes seized, either of the victim or the accused. Page 9 of 44 HC-NIC Page 9 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT Moreover, the FSL reports prepared by the Scientific Officer at exh. 64 as well as the Serological Report also prepared by the Scientific Officer at exh. 65, have not supported the case of the prosecution and nothing has been found which attracts the ingredients of Section 376 of the IPC.
4.4 The learned advocate for the accused No. 1 has also submitted that most of the prosecution witnesses are the interested witnesses, whose evidence is hearsay evidence as they did not have any personal knowledge about the incident in question and though available, the prosecution has not examined any independent witness. He submitted that considering all these aspects in entirety and in view of the material contradictions in the case of the prosecution and lapses in the investigation, contradiction in the age of the victim, the learned trial Judge has committed a grave error in convicting the accused No. 1 for the offences punishable under Section 376 of the IPC as no ingredients of the said offence have been proved and also for the offence punishable under Sections 363 and 366 of the IPC, as the prosecution has failed to prove the case against the accused beyond any reasonable doubt.
Page 10 of 44 HC-NIC Page 10 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT 4.5 In support of his submissions, Mr. Dagli, the learned advocate for the accused No. 1 has relied upon following decisions:
4.5.1 State of Madhya Pradesh Vs. Munna @ Shambhoonath, reported in (2016) 1 SCC 696, more particularly, para 8, 9 and 10, which read as under:
"8. To prove its case, the prosecution produced evidences including school certificate, opinion of the doctor who conducted medical examination of the prosecutrix, bone ossification test, but the High Court held that none of them could bring home the case of the prosecution. The prosecution produced school certificate of the prosecutrix and examined the Principal of Babu Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura (PW1), where the prosecutrix studied in her 9th standard. In his crossexamination, PW1 stated that the age of the prosecutrix was noted at the time of admission but he had no knowledge about the fact as to what date of birth would have been mentioned in her letter of declaration. The examinationinchief of PW8 (Dr. Nisha Sahu) does not support the prosecution story. In her Page 11 of 44 HC-NIC Page 11 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT opinion, the girl could not have attained the age of 14 years, but further in her examinationinchief and cross examination, she stated that she could not opine about the present intercourse. Other findings of PW8 are mere opinions and cannot be relied upon completely to establish the guilt of the accused. (emphasis supplied)
9. From the Xray report of the ossification test, the doctor opined that the age of the prosecutrix could not be more than 14 years. However, since the doctor was never examined, the Xray report is not sufficient to prove the age of the prosecutrix. The prosecutrix was examined as PW5 but the prosecution failed to question the prosecutrix on her age, therefore no fact could be gathered from her regarding the issue of age. PW6 Malti Devi mother of the prosecutrix was examined where she stated the age of prosecutrix to be 13 years. However, in her crossexamination, she stated that her marriage was performed about 20 years ago and after two years of her marriage the elder daughter (Sunita) was born, and 23 years thereafter the prosecutrix was born. It means that the prosecutrix was aged about 1516 years at the time of Page 12 of 44 HC-NIC Page 12 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT the incident. But this is not sufficient to come to any conclusion about the exact age of the prosecutrix. It appears that the Ossification Test Xray report is not sufficient to prove the age of the girl. Further, the mother of the prosecutrix also was not able to give the exact age of the prosecutrix. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident.
Therefore, the High Court presumed that the girl was more than 16 years of age and was competent to give her consent.
10. This Court in the case of Birad Mal Singhvi v. Anand Purohit, has held: (SCC p. 620, para 17) "17. ...the entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined."
Page 13 of 44 HC-NIC Page 13 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT (emphasis supplied) 4.5.2 Narender Kumar Vs. State (NCT of Delhi), reportd in AIR 2012 SC 2281, more particularly, clause (vii) and (xii) of para 15, which read as under:
"(vii) Medical evidence does not positively support the case of the prosecution as Dr. Nisha (PW.9) deposed that seeing her condition and torn clothes it could be said that the prosecutrix might had been raped.
xxx
(xii) The F.S.L. report dated 6.5.1999 reveal that the blood stains/semen on the prosecutrix kurta/ salwar belonged to the AB blood group though the blood group of the appellant is "O"(+) and thus, the FSL report does not support the case of the prosecution."
4.5.3 Alamedlu and Another Vs. State, represented by Inspector of Police, reported in (2011) 2 SCC 385, more particularly, para 47 and 48, which read as under:
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HC-NIC Page 14 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT "47. We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date.
48. We may further notice that even with reference to Section 35 of the Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in Ravinder Singh Gorkhi v. State of U.P. which held as follows: (SCC p.
595, para 8) "38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a Page 15 of 44 HC-NIC Page 15 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." (emphasis supplied) 4.5.4 Md. Ali @ Guddu Vs. State of U. P., reported in 2015 Cr.L.J. 1967, more particularly, para 21, which reads as under:
"21. Be it noted, there can be no iota of doubt that on the Page 16 of 44 HC-NIC Page 16 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a Page 17 of 44 HC-NIC Page 17 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused appellants for the alleged offences and the High Court has fallen into error, without reappreciating the material on record, by giving the stamp of approval to the same." Page 18 of 44
HC-NIC Page 18 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT 4.5.5 Sunil Vs. State of Haryana, reported in AIR 2010 SC 392, more particularly, para 31 to 33, which read as under:
"31. The School Leaving Certificate produced by the prosecution was also procured on 12.9.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable.
32. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced.
33. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite Page 19 of 44 HC-NIC Page 19 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT unsafe to base conviction on an approximate date."
(emphasis supplied) 4.5.6 Mussauddin Ahmed Vs. State of Assam, reported in (2009) 14 SCC 541, more particularly, para 10 and 11, which read as under:
"10. So far as the question of age of the prosecutrix is concerned, PW1 Dr. Pratap Ch. Sarma who had examined her, opined that she was 18 years of age. According to the prosecutrix she was only 13 years of age at the time of incident. PW2 Abdul Hai Laskar, the informant, deposed that prosecutrix was 13/14 years of age. However, PW3 Mrs. Hasmat Ara Begum kept silence on this point. There is nothing on record to show as on what basis, PW2 Abdul Hai Laskar had given her age. It appears very unnatural as none of the family members of the prosecutrix comes to the scene. Her parents or either of them or any other family member could be most reliable and natural witness on the point of her age. PW 2 Abdul Hai Laskar, in his examinationinchief stated as under:
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HC-NIC Page 20 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT "Later the girl's mother came and took her away. At present she is staying with her parents."
Thus, it cannot be assumed that prosecutrix did not have parents or other family members. Prosecution for the reasons best known to it examined her employer PW2 Abdul Hai Laskar and his wife PW3 Hasmat Ara Begum but did not examine any of her family member on the point of age.
11. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114, Illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohd. Haji Latif)." (emphasis supplied) 4.5.7 The State of Gujarat Vs. Jivanlal Chhotalal Patel, reported in 1985 GLH 388, more particularly, para 6, which reads as under: Page 21 of 44
HC-NIC Page 21 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT "6. The school leaving certificate for the purpose of proving the age in a criminal trial is useless. This investigating agency must know not from today, but if they had read the other judgments of this Court and if they had read the judgments of any Sessions Judge in regard to the method of investigation in regard to the age they would have learnt as to how the age is required to be proved. But it appears to us clearly and we report that it clearly appears to us in this particular case that they have not done anything to find out and investigate as to what the age of Sushila was.
The school certificate which is produced at Exhibit 19 and if the investigating agency had bothered to read that certificate from column No. 6 they would have known that the girl was not admitted for the first time in that school but she came to that school from some other school and the birthdate which was found in that certificate which was brought for the purpose of getting admission in this school that birthdate was noted. The investigating agency must find out as to in which school first she was admitted. This is necessary because under the Bombay Primary Education Act and the Rules made thereunder it is compulsory for the guardian to state the exact Page 22 of 44 HC-NIC Page 22 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT date of birth at the time of getting the child admitted and at that time, not only produce the evidence as to how a particular date has been given to the school authorities but a statement is also filed in the school under the Act and the Rules and from that statement the investigating agency would be able to know the name of the person who got the child admitted in the school. That person is required to be examined in the court and that statement is required to be proved and that person would prove that on a particular date on which he went to the school authorities to get the child admitted, he gave the birth date from a particular source. But the investigating agency is required to go into the matter deep in order to ascertain the truth. If this is not done in the court of law they will never be able to bring the best available evidence which by their own effort they could have got and which they by their own negligence did not bother to get. That investigating agency should not have in any case bothered to file appeal but to improve the investigating method in order that such a result may not follow in all future cases to come."
(emphasis supplied) Page 23 of 44 HC-NIC Page 23 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT 4.5.8 Arvindbhai Karshanbhai Godavariya Vs. State of Gujarat, passed by this Court in Criminal Appeal (Against Conviction) No. 1595 of 2013 on 06/05/2015, more particularly, para 7 to 10, which read as under:
"7. From the evidence on record, it can be seen that date of birth of the prosecutrix is 18.3.1997. Therefore, it is an admitted position that at the time of offence, her age was 15 years, six months and four days. However, going through the factual scenario, Ms.Bhatt is not in a position to dispute that the prosecutrix has moved with the accused from one place to another. From the evidence on record, it is clear that this is a case of love affair, however, age of the prosecutrix is a relevant factor. Therefore, taking into considering the evidence of her mother, medical certificate and birth certificate of the prosecutrix, conviction of the accused cannot be reversed.
8. At this stage, it is relevant to reproduce herein below certain observations made by the respective Courts : 8.1 In S. Varadarajan v. State of Madras (supra) Page 24 of 44 HC-NIC Page 24 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own that perhaps an unlettered girl hailing from a rural area.
8.2 In Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan (supra) We have heard learned Counsel for respective parties and have perused the oral as well as documentary evidence on record. It is a matter of record that the prosecutrix went missing from her house in the noon hours of 07.09.2004. The document on record at Ex.11 is the School Leaving Certificate of the prosecutrix, which is a conclusive piece of evidence for the purpose of ascertaining the age of a person. In the said Page 25 of 44 HC-NIC Page 25 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT document, the date of birth has been shown as 31.08.1986.
Even otherwise, the said date of birth has not been disputed by the prosecution. Therefore, admittedly and evidently, on the day when the prosecutrix went missing from her house, she was more than 18 years of age.
9. Having considered the evidence on record and the decisions of the Supreme Court, as aforesaid, it is clear that the prosecutrix was aged above 15 years. Therefore, it cannot be said that the accused has not committed any offence and conviction for the offences as alleged cannot be reversed.
10. Inspite of aforesaid observations, in my view, the learned trial Judge has fallen in error in considering the medical evidence of on record, which shows that there were no external injuries on the person of the victim. From the evidence on record, following aspects emerge:
(a) The prosecutrix had moved from place to place with the accused and she did not at all complain.
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(b) There were no marks of injury on the person of the accused.
(c) The important aspect is that the prosecutrix had time to complain but she had never stated that the accused had raped her, though she had chances.
10.1 Therefore, it is clear that the prosecutrix had voluntarily moved from place to place. Moreover, it is stated by Mr.Sundesara that the prosecutrix has got married and has settled in life. The purpose and justification behind sentencing is not only retribution, incapacitation, rehabilitation but deterrence as well. A young boy of 18 years is already deterred as he is in jail since more than one year and six months. He is required to be rehabilitated, as the prosecutrix has now married and she has settled in life, while upholding the conviction of the accused, sentence is required to be modified suitably. I am supported in my view by the decision of the Apex Court in the case of State of Chhattisgarh v. Lekhram reported in AIR 2006 SC 1746. In the said case, similarly the prosecutrix was below 16 years of age, however, she was Page 27 of 44 HC-NIC Page 27 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT married and the respondentaccused who working in the house of father of prosecutrix abducted her and committed rape on her. While deciding the question of sentence, the Honourable Apex Court observed as under:
"16. The prosecutrix was a mature girl. She was married. She spent a few months in her inlaws' place. The Respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the Respondent on a false plea that he would marry her. She denied the said suggestion as presumably she was aware that she being married, the question of her marrying the Respondent again may not arise. She lived for some time with the Respondent in a rented house. Both the courts proceeded on the basis that she was a consenting party. The occurrence took place in the year 1986. The Respondent preferred an appeal before the High Court in the year 1987. The same remained pending about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to Page 28 of 44 HC-NIC Page 28 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT have remained in custody for about one and a half year. In the peculiar facts and circumstances of this case and having regard to the fact that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the Appellant back to prison.
17. For the aforementioned reasons, while setting aside the judgment of the High Court and affirming that of the Trial Court, we are of the opinion that the interest of justice would be met if the Respondent is directed to be sentenced to the period already undergone by him. This appeal is allowed with the aforementioned directions."
4.6 So far as the accused No. 2 is concerned, learned advocate Mr. Sharma contended that the trial Court has committed a serious error of law as well as the evidence on record in convicting the accused No. 2 for the offences punishable under Section 363 and 366. He, while adopting almost all the submissions made by Mr. Dagli, the learned advocate for the accused No. 1, submitted that there is no an iota of evidence against the accused No. 2 to connect him with the crime. He submitted that material contradictions have come on record as to Page 29 of 44 HC-NIC Page 29 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT the age of the victim and in no case, the victim can be said to be a minor while the alleged offence had occurred, more particularly, in view of the depositions of the complainant at exh. 25 and the mother of the victim at exh. 28. He further submitted that the accused No. 2 has wrongly been implicated in the crime in question as he was the friend of the accused No. 1 and neighbour of the victim and as such, the prosecution has failed to prove any nexus of accused No. 2 with the crime. He further submitted that, if at all the incident in question had been occurred then too, it might have been by the accused No. 1 and no role can be attributed to the accused No. 2. Page 30 of 44 HC-NIC Page 30 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT 4.7 Making above submissions, the learned advocates for the respective appellants requested to allow the present appeals setting aside the impugned judgment and order.
5. Per contra, Ms. Chandarana, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper and accordingly, it is requested that this Court should not interfere in appeal. She took the Court through the relevant oral as well as documentary evidence on record, more particularly, the depositions of PW2 Vitthalbhai Manibhai Thakore, the complainant and father of the victim, at exh. 25, PW3 victim at exh. 27, PW4 Jashiben Vitthalbhai Thakore at exh. 28, PW5 Jitubhai Vitthalbhai Thakore at exh. 29, Birth Certificate of the victim at exh. 52 and the Birth Certificate issued by the school at exh. 55 and the copy of extract of Births and Deaths Registration Register at exh. 53 and the discussion made by the learned trial Page 31 of 44 HC-NIC Page 31 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT Judge in the impugned judgment and order and submitted that considering the aforesaid, it can easily be said that the victim was minor at the time of incident, the accused had kidnapped her and the accused No. 1 had committed rape. She submitted that though from the deposition of PW1 Dr. Truptiben Gunvantbhai Prajapati at exh. 16, it has revealed that there were no injury marks and/or the blood or sperm marks on the private part of the body of the victim and there were no signs of resistance by the victim, however, only because of such fact, the fact of rape cannot be discarded as there are all chances of the accused having frightened the victim of grave consequences influenced of which, having been scared, she might not have resisted. Moreover, from the deposition of the doctor, the fact of intercourse with the victim has been proved beyond reasonable doubt. Under the circumstances, the learned trial Judge has rightly convicted the accused, duly evaluating and appreciating the evidence on record, and considering the gravity of the offence, she requested that this Court may not interfere in the appeal and eventually, requested to dismiss the present appeals confirming the impugned judgment and order.
6. I have considered the abovereferred rival submissions made by Page 32 of 44 HC-NIC Page 32 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT the learned advocates for the parties and also gone through the evidence on record and reappreciated and reevaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. I have also gone through the impugned judgment and order and the decisions relied upon by the learned advocate for the accused No. 1.
6.1 The facts of the case are that the accused kidnapped the minor daughter of the complainant and thereafter, the accused No. 1 committed rape on her. Much emphasis have been given on the age of the victim. As per the case of the prosecution, she is minor whereas, as per the defence, victim was of more than 16 years of age. To appreciate the said aspect, I have gone through the depositions of the complainant - PW2 Vitthalbhai Manibhai Thakore at exh. 25, PW4 Jashiben Vitthalbhai Thakore at exh. 28, and the Birth Certificate of the victim at exh. 52 as well as the Birth Certificate of the victim issued by the school at exh. 55 and the copy of extract of Births and Deaths registration register at exh. 53. From the deposition of the complainant it is revealed that while deposing before the Court, he was aged 45 years. Further, in his crossexamination, he has stated that while he was eighteen years of age, his marriage was solemnized and after two Page 33 of 44 HC-NIC Page 33 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT years of the marriage they had a boy child and after four years the birth of that boy child (his elder son), the victim had born. The incident had occurred in February 2013 and thereafter, about a period of one year later, his evidence was recorded by the trial Court. Thus, considering the above, it can be inferred that the victim, at the time of incident, was more than 16 years of age. In this regard, a perusal of the Birth Certificate of the victim produced on record at exh. 52 reveals her date of birth to be '13/10/1997', however, the date of birth mentioned in the school certificate at exh. 55, is '20/10/1997 and in view of these documentary evidence, if the deposition of the complainant is considered, there appears material contradictions as to the actual date of birth of the victim, as if the certificates are believed, the victim should be minor, however, as per the complainant's version, she should be of more than 16 years of age. Moreover, it is also a fact that in the Birth Certificate at exh. 52, no name of the child is mentioned. Moreover, if the certificate issued by the school at exh. 55 is taken into consideration, there is nothing on record to show that on which basis, the school had issued the said certificate or on which basis, the said birth date was entered into the school records. Moreover, no witness has been examined to substantiate the said fact. Accordingly, for want of Page 34 of 44 HC-NIC Page 34 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT any specific evidence qua the birth date of the victim, it is very difficult to believe the birth date and the age, as is projected by the prosecution and it is difficult to arrive at a specific conclusion that the victim was minor at the time of incident. Moreover, no Ossification Test for ascertaining the age of the victim is stated to have been conducted and in the circumstances, I am of the opinion that the conclusion arrived by the learned trial Judge that the victim was minor at the time of incident, appears to be without any basis, more particularly, when, from the version of the complainant, the age of the victim could be calculated to be more that 16 years.
6.2 Moreover, the deposition of PW1 Dr. Truptiben Gunvantbhai Prajapati at exh. 16, who had examined the victim after the incident, bears much importance so far as the offence punishable under Section 376 of the IPC is concerned. She has specifically stated in her examinationinchief that, 'on inquiring the history, the victim had told that on 02/02/2013, Saturday, she had willingly gone with Vikrambhai Amrutbhai Talpada (accused No.
1) at the poultry farm, where they stayed for two days and on Sunday, they had intercourse twice'. She has further deposed that, Page 35 of 44 HC-NIC Page 35 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT 'according to her, her genitals could be examined easily and there found no injury marks thereon and accordingly, it could be said that it was not an intercourse by force'. In her crossexamination also she has stated that, 'after the intercourse, the victim had not bathed nor had she changed her clothes; there were no sperm marks appeared on the clothes of the victim'. It is also important to note that this witness i.e. the PW1, has deposed in her examinationinchief that for verification/ examination of age, the victim was referred to the civil hospital at Ahmedabad. Nothing has been forthcoming on the record that what was the final report of the doctor of Civil Hospital, Ahmedabad regarding the Ossification Test, supposed to be carried out by the said doctor.
6.3 Moreover, on going through the decisions relied upon by the learned advocate for the accused No. 1, which, in the opinion of this Court, are squarely applicable to the case on hand, it is specifically held by the Hon'ble Apex Court in the decision in Sunil Vs. State of Haryana (supra) that, 'in a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to Page 36 of 44 HC-NIC Page 36 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT base conviction on an approximate date'. Moreover, in the decision in The State of Gujarat Vs. Jivanlal Chhotalal Patel (supra) this Court has held in para 6 referred to above that 'the school leaving certificate for the purpose of proving the age in a criminal trial is useless'. At the cost of repetition, the said para is reproduced hereunder because if we peruse the same, it appears that in the year 1985, this Court was not satisfied relating to the matter in which the investigating agency had dealt with in regard to the method of investigation in regard to the age and they would have learnt as to how the age is required to be proved and thereafter, whatever it has been narrated in the facts of the said case, the same circumstances, also appear to the present case. In the case on hand also, no efforts appear to have been made by the investigating agency, more particularly, two different dates have been forthcoming on record by two different documents respectively at exh. 52 and 55, as discussed herein above. I am of the view that when two dates, as discussed herein above, have been forthcoming on record regarding the age of the victim, then, the Investigating Officer was duty bound to take extra care before filing the chargesheet and put some more efforts to get the uptodate and relevant documents as narrated herein by this Page 37 of 44 HC-NIC Page 37 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT Court in the year 1985 but for the reasons best known to the Investigating Officer, no satisfactory investigation on the main line had been carried out relating to the age and that has created chaos in the case on hand. As discussed herein above, in spite of the fact that PW1 Dr. Truptiben Gunvantbhai Prajapati, exh. 16, has specifically referred the victim to get the uptodate age through Ossification Test to the civil hospital at Ahmedabad, then also nothing has been produced by the prosecution, more particularly, the Investigating Officer while filing the charge sheet, whether the said direction given by the doctor had been carried out or not. Even after filing of the chargesheet and after the deposition of the aforesaid doctor, no attempt had been made by the prosecution to get the satisfactory explanation regarding the said aspect whether in fact, the directions given by the doctor (PW1) was carried out or not. It can easily be said that this is nothing but negligence on the part of the investigating machinery, whether it is deliberate attempt or a sheer negligence that can be proved after the inquiry. Under the circumstances, a copy of this judgment and order be forwarded to the Director General of Police, Gandhinagar, who is directed to initiate the preliminary inquiry against the Investigating Officer concerned, i.e. PW19 Rajubhai Gandabhai Desai (exh. 60): Page 38 of 44
HC-NIC Page 38 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT "6. The school leaving certificate for the purpose of proving the age in a criminal trial is useless. This investigating agency must know not from today, but if they had read the other judgments of this Court and if they had read the judgments of any Sessions Judge in regard to the method of investigation in regard to the age they would have learnt as to how the age is required to be proved. But it appears to us clearly and we report that it clearly appears to us in this particular case that they have not done anything to find out and investigate as to what the age of Sushila was.
The school certificate which is produced at Exhibit 19 and if the investigating agency had bothered to read that certificate from column No. 6 they would have known that the girl was not admitted for the first time in that school but she came to that school from some other school and the birthdate which was found in that certificate which was brought for the purpose of getting admission in this school that birthdate was noted. The investigating agency must find out as to in which school first she was admitted. This is necessary because under the Bombay Primary Education Act and the Rules made Page 39 of 44 HC-NIC Page 39 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT thereunder it is compulsory for the guardian to state the exact date of birth at the time of getting the child admitted and at that time, not only produce the evidence as to how a particular date has been given to the school authorities but a statement is also filed in the school under the Act and the Rules and from that statement the investigating agency would be able to know the name of the person who got the child admitted in the school. That person is required to be examined in the court and that statement is required to be proved and that person would prove that on a particular date on which he went to the school authorities to get the child admitted, he gave the birth date from a particular source. But the investigating agency is required to go into the matter deep in order to ascertain the truth. If this is not done in the court of law they will never be able to bring the best available evidence which by their own effort they could have got and which they by their own negligence did not bother to get. That investigating agency should not have in any case bothered to file appeal but to improve the investigating method in order that such a result may not follow in all future cases to come."
Page 40 of 44 HC-NIC Page 40 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT 6.4 Thus, considering all the aspects of the matter in entirety, I am of the view that the learned trial Judge has committed a grave error in convicting the accused No. 1 for the offence punishable under Section 376 of the IPC. However, so far as the offence punishable under Sections 363 and 366, from the evidence on record, more particularly, the deposition of the victim as well as the complainant and the mother of the victim, and the history given by the victim before the doctor (PW1) the ingredients of the said offences are proved beyond reasonable doubt so far as accused No. 1 is concerned and I am of the opinion that the learned trial Judge has committed no error in convicting the accused No. 1 for the said offence. So far as conviction related to Sections 363 and 366 of the IPC to accused No. 2 is concerned, as such, no direct and cogent evidence has been forthcoming on the record and under the circumstances, though the conviction is being confirmed, in my view, the punishment imposed upon him is required to be modified and the interest of justice would meet if the same is reduced to the period he has already undergone. Accordingly, to the aforesaid extent the impugned judgment and order is required to be modified.
7. In view of the aforesaid discussion, present appeals succeed in Page 41 of 44 HC-NIC Page 41 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT part and the impugned judgment and order dated 07/03/2014, passed by the learned 6th Additional Sessions Judge, Nadiad, in Sessions Case No. 111 of 2013, is hereby modified to the aforesaid extent and the appellant - original accused No. 1 is acquitted of the charge for the offence punishable under Section 376 of the IPC. So far as the conviction of the appellants - accused for the offences punishable under Sections 363 and 366 of the IPC is concerned, the impugned judgment and order is confirmed, however, the sentence imposed upon the accused No. 2 is reduced to the period he has already undergone. The rest of the judgment and order shall remain unaltered. The accused No. 1 is reported to have undergone 03 years, 04 months and 02 days and accordingly, he be set free forthwith, if not required in any other case. The accused No. 2 is reported to be on bail and accordingly, he needs not to surrender to custody except he requires so in any other case and his bail bond shall stand cancelled. Registry to return the R&P to the trial Court forthwith. The registry is further directed to forward a copy of this judgment and order to the Director General of Police, Gandhinagar, who is directed to initiate the preliminary inquiry against the Investigating Officer concerned i.e. PW19 Rajubhai Gandabhai Desai and submit the report of the same within three Page 42 of 44 HC-NIC Page 42 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT months from today before this Court.
8. Before parting, this Court may observe that, with a view to improve the method of investigation, more particularly, in a case of rape and in order to see that such a lacuna may not occur and may not be prejudicial to either of the parties in future cases, an attempt was made by this Court in the year 1985 by making certain observations referred to above, however, it appears that from 1985 till date, the methodology appears to have remained the same sans any improvement in the investigation. The Hon'ble Apex Court has also observed that a Court of law, for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act, will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted and hence, a public document has to be Page 43 of 44 HC-NIC Page 43 of 44 Created On Sat Aug 06 05:13:10 IST 2016 R/CR.A/742/2014 CAV JUDGMENT tested by applying the same standard in civil as well as criminal proceedings. I am of the opinion that so far as the investigation part is concerned, a regular sensitization programs on this aspect besides others and continuous watch on the pronouncements of the highest Courts of law, may be of a great help in avoiding such a lacuna and negligence or may be a deliberate attempt on the part of the investigating agency. Moreover, while making the assessment in Annual Confidential Reports, the evaluation as to the capability of proper investigation should be considered by the assessing authority, so that in a fit case the accused may not be acquitted or convicted in absence of any reliable and cogent evidence. The Director General of Police may also consider this aspect.
[ G. B. Shah, J. ] hiren Page 44 of 44 HC-NIC Page 44 of 44 Created On Sat Aug 06 05:13:10 IST 2016