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2016 Supreme(Guj) 753
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Rajesh H. Shukla, J.
Ramesh Bijal Marwada - Appellant
Vs.
State of Gujarat - Respondent
Criminal Appeal No. 180 of 2012
Decided On : 26-04-2016
For the Appellant :Ashish M. Dagli, Advocate
For the Respondent: Hansa Punani, APP
IMPORTANT POINT
Imposition of appropriate punishment is manner in which courts respond to society's cry for justice against criminals.
Headnote:
Indian Penal Code, 1860 –Sections 363, 366 and 376 –Code of Criminal Procedure, 1973 –Section 313 – Rape – Complainant-father lodged complaint that he received phone call in morning that victim-daughter of complainant was not found in house –Inquiry was made at house of accused, who is neighbour and was informed that accused had also left early in morning stating that he is going out for labour work – Complaint came to be filed for offence under Sections 363 and 366 of Indian Penal Code –After the victim was found report was made for adding Section 376 of Indian Penal Code –After investigation was over charge-sheet for alleged offences came to be filed –Complaint was tried by Court of Sessions – Court recorded evidence of prosecution witnesses –Court recorded further statement of accused–Sessions Judge passed judgment and order recording conviction –Held, No marks of injuries and victim is said to have accompanied from place to place, consent of victim, who is minor, would not be relevant –Specific evidence cannot be brushed aside merely because some issue is sought to be raised –Opportunity was available to defence regarding ossification test not been availed – No contention about the age of the victim can be raised –Submission that victim had voluntarily accompanied accused may not be accepted –Submission that she had attained age of discretion is also misconceived –Consent without any threat or compulsion consent may not be relevant for purpose of offence–Appeal deserves to be allowed only to extent of modification/reduction of sentence while maintaining conviction–Applicant bail bond stands cancelled – Applicant is directed to surrender before the jail authority –Petition partly allowed.
Facts of the case:
Complainant-father lodged complaint that he received phone call in morning that victim-daughter of complainant was not found in house –Inquiry was made at house of accused, who is neighbour and was informed that accused had also left early in morning stating that he is going out for labour work – Complaint came to be filed for offence under Sections 363 and 366 of Indian Penal Code –After the victim was found report was made for adding Section 376 of Indian Penal Code –After investigation was over charge-sheet for alleged offences came to be filed –As the offences were tried committed to the Court of Sessions – Court recorded evidence of prosecution witnesses –Court recorded further statement of accused under Section 313 of Code of Criminal Procedure, 1973 –Sessions Judge passed judgment and order recording conviction
Findings of the Court:
No marks of injuries and victim is said to have accompanied from place to place, consent of victim, who is minor, would not be relevant –specific evidence cannot be brushed aside merely because some issue is sought to be raised –Opportunity was available to defence regarding ossification test not been availed – No contention about the age of the victim can be raised –Submission that victim had voluntarily accompanied accused may not be accepted –Submission that she had attained the age of discretion is also misconceived –There has to be a free and voluntary consent without any threat or compulsion consent may not be relevant for the purpose of offence –Appeal deserves to be allowed only to extent of modification/reduction of sentence while maintaining conviction –Applicant bail bond stands cancelled – Applicant is directed to surrender before the jail authority –Petition partly allowed.
Result: Petition Partly Allowed
Rajesh H. Shukla, J.
1. The present appeal is directed against the impugned judgment and order rendered in Sessions Case No. 29/2010 by the Additional Sessions Judge, Gandhidham-Kutch dated 27.12.2011 recording conviction of the appellant-accused for the offence under Sections 363 and 376 of the Indian Penal Code imposing sentence as stated in detail in the impugned judgment and order.
2. The fact of the case briefly summarized are as follows:--
"2.1 The complainant-father lodged complaint that on 06.03.2010, after the dinner, he along with his family including the victim were sleeping in the house, however on 07.03.2010, the complainant had gone for his work, where he received phone call in the morning that the victim-daughter of the complainant was not found in the house and, therefore, inquiry was made at the house of the accused, who is neighbour and was informed that the accused had also left early in the morning stating that he is going out for the labour work. Therefore, the complaint came to be filed being C.R. No. I-8/2010 with Kandala Police Station for the offence under Sections 363 and 366 of the Indian Penal Code. After the victim was found, the report was made for adding Section 376 of the Indian Penal Code.
2.2 After the investigation was over, the charge-sheet for the alleged offences came to be filed and as the offences were triable by the Court of Sessions, it was committed to the Court of Sessions.
2.3 Thereafter, the Court below proceeded with the trial and recorded the evidence of the prosecution witnesses.
2.4 After recording of the evidence of the prosecution witnesses was over, the Court below recorded further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973.
2.5 After hearing learned APP as well as learned advocate for the defence, the Sessions Judge passed impugned judgment and order recording conviction as stated therein."
3. It is this judgment and order which has been assailed in the present appeal on the grounds stated in the memo of appeal.
4. Heard learned advocate, Shri Ashish Dagli for the appellant-accused and learned APP Ms. Hansa Punani for the respondent-State.
5. Learned advocate, Shri Dagli referred to the testimony of the victim, PW-10 at Exh. 29 and submitted that she has stated that she knew the accused and she is said to have accompanied the accused voluntarily. Learned advocate, Shri Dagli also referred to demeanor of the witness (victim) noted by the Court. He submitted that as could be seen from the testimony of the victim, they have moved from place to place, where she had sufficient opportunity to raise alarm or asked for the help and she has never asked for any help suggesting her consent. Learned advocate, Shri Dagli also submitted that as stated in the testimony, in fact, they had married in a temple and, therefore, it suggests the consent.
6. It was further submitted that though the victim is said to be minor, the prosecution has failed to prove the age of the victim beyond reasonable doubt. Learned advocate, Shri Dagli submitted that if the age of the victim is not specifically proved that she was minor, the benefit should go to the accused. He also referred to the testimony of the complainant-father and also the medical evidence. He also submitted that the age of the victim would be relevant and the prosecution has examined the Principal of the school, PW-19 at Exh. 54. He submitted that during the investigation, the papers or the evidence was not collected and, thereafter, this witness has been examined, who has brought the original register and extract of which is produced at Exh. 55. He pointedly referred to Exh. 55, which is school leaving certificate accompanied by the extract of register produced by the PW-19, Exh. 54. He submitted that though the name of the victim is mentioned and the date of birth is recorded as 01.06.1994. It is not clear as to who has given this date. He submitted that she was admitted in this school subsequently
