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2016 Supreme(Guj) 1183
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Anant S. Dave and B.N. Karia, JJ.
Thakore Dineshji Balvantji - Appellants
Vs.
State of Gujarat - Respondent
Criminal Appeal Nos. 995 and 1102 of 2011
Decided On : 05-07-2016
For Appellant :Siddharth H. Dave, Advocate
For Respondents: Rutvij Oza, Addl. Public Prosecutor
IMPORTANT POINT: There is a distinction between "taking" and allowing a minor to accompany a person.
Headnote:Code of Criminal Procedure, 1973—Section 374, 377—Indian Penal Code, 1860—Section 363, 366—Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989—Section 3—Appeal No. 995 is preferred by convict-appellant against the conviction for offences under section 363 and 366, IPC and under certain provisions of SC/ST Atrocities Act—While Appeal No.1102 is filed by the appellant-state for enhancement of sentence against the order of sentence passed by special judge in the same case—There is a distinction between "taking" and allowing a minor to accompany a person—It is sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so—It is undisputed that accused belonged to caste other than scheduled caste while victim belonged to scheduled caste but that fact itself is not sufficient to bring home the charge about dominant position of accused.
Result—Appeal No. 995 allowed and Appeal No. 1102 is dismissed.
Anant S. Dave, J.
1. Criminal Appeal No. 1102 of 2011 is preferred by the State of Gujarat/appellant under Section 377 of the Code of Criminal Procedure, 1973 against the judgment and order of sentence passed by the Special Judge, Patan in said Atrocity Case No. 2 of 2011 on 30th June, 2011 for the offence punishable under Section 363, 366 of Indian Penal Code and Section 3(1)(12) and Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The learned trial Judge acquitted the respondent-accused of offence under Section 376 of Indian Penal Code. However, convicted for Section 363 of Indian Penal Code imposed 3 years of rigorous imprisonment and fine of Rs. 500/- and default thereto to undergo 9 months of simple imprisonment. For the offence punishable under Section 366 of Indian Penal Code having recorded the conviction imposed 4 years of rigorous imprisonment fine of Rs. 500 and default thereto 1 year of simple imprisonment. Further for the offence under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act to which mention is made herein above having recorded the conviction imposed sentence of 6 months of rigorous imprisonment fine of Rs. 500 and default there to 1 month of simple imprisonment. All the sentence to run concurrently and awarded compensation under Section 375(3) of Code of Criminal Procedure, that accused is to pay the fine.
2. Criminal Appeal No. 995 of 2011 is preferred by the convict appellant challenging the conviction and sentence so recorded to which, mention is made in earlier paragraph appeal is under Section 374(2) of Code of Criminal Procedure, 1973.
3. The brief facts of the prosecution case is that the complainant Parsottambhai Maganbhai Parmar, registered his complaint at Kakoshi Police Station, Dist: Patan, stating therein that on 5.11.2010, the accused Thakor Dineshbhai Balvantji knowing that the daughter of complainant was belonging to scheduled castes, in furtherance of his criminal intention by giving false temptation, abducted the daughter of complainant from the lawful custody of her parents without her will and consent, and with an intention to commit sexual intercourse with her, took her to Kalol by inducing her and committed rape on her very often. Thereby, the accused committed offences punishable under Sections 363, 366, 376 of Indian Penal Code and Section 3(1)(12) and 3(2)(5) of Prevention of Atrocities Act.
4. On the basis of the said complaint, investigation was initiated and as there was sufficient evidence against the respondent-accused person, charge sheet was filed against him before the learned Judicial Magistrate First Class, Patan. As the offences committed by the accused person was exclusively triable by the Court of Sessions as per the provisions of 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial before the Special Judge, Patan, which has been numbered as Special (Atrocity) Case No. 2/11. Thereafter, charge was framed against him for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code and Section 3(1)(12) and 3(2)(5) of the Indian Penal Code. The accused person pleaded not guilty to the charges and claimed to be tried. The prosecution therefore laid evidence. The prosecution has examined 11 witnesses as well as produced 19 documentary evidences on the record of the case. At the conclusion of the trial, Special Judge, Patan was pleased to convict the accused and imposed punishment.
5. We have heard learned advocates appearing for the convict and learned APP in both these appeals.
6. Mr. Siddarth Dave, learned advocate for the appellant for the convict in Criminal Appeal No. 995 of 2011 under Section 374(2) of Code of Criminal Procedure, 1973 would contend that inspite of examining 11 witnesses and producing 19 documentary evidence, the prosecution was not able to establish its case even
