2006 Supreme(Guj) 205

Gujarat High Court
Judgename :C.K.BUCH, H.N.DEVANI
THAKORE TEJAJI DEVAJI - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL APPEAL 445 Of 1999
Decided On : 03/20/2006

Headnote:Point in Issue :

       Whether accused appellants were rightly convicted of the offences with which were charged.

       Head Note :

       [Indian] Penal Code, 1860 (Central Act 45 of 1860) - Sections 363, 366, 376, 380 and 411 - Kidnapping, rape and theft - Conviction - Sustainability - Finding as to - In order to prove offence of kidnapping it has to be established that victim child was below 18 years - In the case prosecution has satisfactorily proved that victim was a minor below 16 years of age and she left the shelter of her parents in their absence under inducement of mainly accused No. 1 TD - The story put forward by prosecution that more than 2 to 3 persons had entered the house of complainant is not free from doubt and cannot be accepted - When it is clear from the evidence of complainant that house was locked from inside and victim alongwith others was sleeping inside, no body could have entered the house by throwing water on the face of the victim - It is in evidence that victim was sleeping on same cot with her elder sister - So in the facts it emerges that victim was waiting for the Accused No. 1 on account of inducement given by him - She had opened the entrance of house - Victim and accused No. 1 had committed the theft of ornament jointly to take the same with them - The investigating agency has charged both of them for the offence under Section 380 IPC - It cannot be held that other accused appellant were party to it - Minor victim has alleged that accused No. 1 had established physical relation with her, therefore, element of consent on her part would not help accused No. 1 because of her age - The stolen articles were found in possession of accused appellant No. 5 M - In absence of any explanation with regard possession she can be absolved of liability under Section 411 of the Code - Court, therefore, held that prosecution has not been able to establish the charges under Sections 363, 366 and 376 read with Section 114 of the Code against any of the accused except accused No. 1 TD - Court also held Accused No. 5 M guilty for offence punishable under Section 411 of the Code - Court however, reduced the sentence awarded to accused No. 1 TD and accused No. 5 M and acquitted the rest of the accused appellant for offences with which they were charged.

       Held :

       When it is clear from the evidence of the complainant and especially the complaint that the house was locked from inside and children were sleeping inside the house and keys of lock were put below the pillow by the eldest sister Harshaben, then nobody could have entered the house and that too at a place from where one can throw some water on a person sleeping on a cot. It is in evidence that Harshaben as well as the victim girl Kailash were sleeping on the same bed. So, it emerges that on account of inducement given by Accused No. 1 Tejaji, victim Kailash must be waiting for arrival of Accused No. 1 Tejaji and some signal from outside and thereafter she must have opened the entrance door of the house. [Para 9]

       It is established that Kailash was aged less than 16 years i.e. 15 years and 11 months and obviously therefore below 18 years of age and she left the house under inducement of Accused No. 1 Tejaji. So, we are not inclined to disturb the finding recorded against Accused No. 1 Tejaji for the offence punishable under Section 363 of IPC. However, we are of the view that the learned Trial Judge ought not to have convicted any of the other accused for the offences punishable under Section 363 read with Section 114 of IPC. Its is not necessary to reproduce Section 107 of IPC and scheme of Section 114 of IPC. In absence of any overt act in committing the offence punishable under Section 363 of IPC by any of the co-accused who are before us, it will not be possible for us to uphold the finding recorded by the learned Trial Judge to link rest of the co-accused i.e. Accused Nos. 2, 4 to 6 with the offence punishable under Section 363 read with Section 114 of IPC. So, except appellant Accused No. 1 Tejaji Devaji, according to us, the rest of the accused appellants have been erroneously held guilty of the offence punishable under Sections 363 read with 114 of IPC and their conviction requires to be quashed and set aside. [Para 10]

       According to us, same logic would apply so far as offence punishable under Section 366 of IPC is concerned. It is true that as per the say of victim Kailash, she was taken firstly to village Mudetha and thereafter to village Raner in the company of other accused persons, but the evidence led by the prosecution, according to us, is inadequate to link all the accused persons other than Accused No. 1 Tejaji with the crime punishable under Section 366 read with Section 114 of IPC. Though it is said that minor Kailash was taken by all the accused persons in a matador to village Mudetha, there is no sufficient evidence to established one fact that all the accused had travelled together in the same vehicle because the person who had carried the accused persons allegedly in the vehicle, has not been examined.

        [Para 11]

       Minor Kailash has stated on oath that the Accused No. 1 Tejaji had established physical relations and so element of consent, in view of nature of evidence as to the age of victim girl, would not help the Accused No. 1 Tejaji. The learned Trial Judge has rightly appreciated the say of victim Kailash as to the commission of rape on her because her version is satisfactorily corroborated by the medical evidence. It is true that tear of hymen was old and in view of other aspects narrated by the doctor of the private part of the body of the person victim, it is possible even to argue that victim girl Kailash must have physical relations with Accused No. 1 Tejaji even prior to the day on which Accused No. 1 Tejaji had intercourse with her, even then the fact remains that act of Accused No. 1 Tejaji is nothing but "rape" punishable under Section 376 of IPC. The learned Trial Judge, normally, should seek reasonable corroboration when Kailash is an accomplice and so the learned Trial Judge was bound to ignore the element of consent because there was ample convincing evidence on record to show that minor Kailash had not completed 16 years of age at the time of incident.

        [Para 12]

       We have carefully gone through her statement recorded under Section 313 of CrPC and when it is not her defence that the said silver anklets (Kadala) were put on by her at the instance of Kailash, one of the family members of the owner of the property, she could not have been given benefit of doubt. But when Kailash herself is an accused of the offence punishable under Section 380 of IPC, wearing of such ornaments by Accused No. 5 Mangiben by itself is a guilty conduct and, therefore, we are inclined to observe that the prosecution has satisfactorily established the crime against Accused No. 5 Mangiben for the offence punishable under Section 411 of IPC. It is not possible for us to say that any other accused persons have committed the offence of the nature that has been committed by Accused No. 5 Mangiben i.e. offence punishable under Section 411 of IPC. Non-examination of Kankuba also affects adversely the case placed by the prosecution that accused persons who were allegedly found in possession of the stolen property, are guilty of the offence punishable under Section 411 of IPC. [Para 14]

       So, we accept some part of alternative arguments advanced by learned Counsel Mr. Jani that the prosecution has not established the charges for the offences punishable under Sections 363, 366 and 376 read with Section 114 of IPC against any of the accused except Accused No. 1 Tejaji Devaji. In the same way, the prosecution has also failed in establishing the charge for the offence punishable under Section 380 read with Section 114 of IPC against other accused persons. However, we are not inclined to disturb the finding recorded by learned Trial Judge against Accused No. 1 Tejaji Devaji holding him guilty for the offences punishable under Sections 363, 366, 376 and 380 of IPC. Accused No. 5 Mangiben is held guilty for the offence punishable under Section 411 of IPC. [Para 15]

       Law Laid Down :

       Element of consent is not relevant in case of rape where victim is minor.

       Conclusion :

       Prosecution has proved the offences against Appellant No. 1 TD with which he was charged - Offence under Section 411, IPC is also proved against the Appellant No. 5 M - They were rightly convicted for the said offences - However, the quantum of sentence was reduced by Court - The rest of the accused appellant were acquitted of the said offences.

       Decided in Favour of :

       Feed Matter

       Appeal Allowed Accordingly