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2016 Supreme(Guj) 2088
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ANANT S. DAVE and B.N. KARIA, JJ.
STATE OF GUJARAT - Appellants
Versus
BIPINBHAI NANALAL JANI & Ors. - Respondents
CRIMINAL APPEAL No. 274 of 2006
Decided On : 28-09-2016
For the Appellants : RUTVIJ OZA
For the Respondents: DIGANT M. POPAT, MANOJ N. POPAT, NISHANT LALAKIYA, TULSHI R. SAVANI
IMPORTANT POINT: The only conclusive piece of evidence of girl’s age may be the birth certificate, but unfortunately, in this country, such a document is not ordinarily available.
Headnote::(A) Indian Penal Code---Section 361---Ingredients are that person kidnapped was under 16 years if male or under 18 years if female, or insane---That person kidnapped was in keeping of lawful guardianship---That accused took or enticed such person out of such keeping and----That accused did so without consent of lawful guardian---The offence of kidnapping would be complete, moment the minor girl under 18 years’ of age is actually taken from lawful guardianship, without the consent of such guardian---Even the assumption that victim girl would escape thereafter would not exonerate the accused from offence of kidnapping.
(B) Section 366---Ingredients are that the accused induced the complainant or compelled by force to go from any place---that such inducement was by deceitful means---that such abduction took place with the intent that the complainant may be seduced to illicit intercourse---that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction--- Mere abduction does not bring an accused under the ambit of this penal section---Mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or proves that the abduction is for the purpose mentioned in Section 366 IPC--- In case of prosecution under Section 366, the age of the victim girl is a very important factor, particularly so when according to the medical evidence she is found to have been used to sexual intercourse---Prosecution is bound to prove that age of the victim girl was below 18.
(C) Age---The data from which age may be ascertained are teeth, ossification of bones, height, weight and miscellaneous signs---When considered individually little reliance is to be placed on each individual test, but taken together they may offer a fairly reliable means to ascertain the age--- Medical evidence about age based upon epiphyses of bones is based on scientific test and is acceptable---But, if there is any conflicting evidence the benefit of the uncertainty as to age should go to the accused--- The Court or jury has to base its conclusion upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available---Birth certificate and oral evidence when are doubtful, radiologist’s opinion as to age is to be accepted---The definite opinion of radiologist as to age cannot be discarded on confusing evidence mingled by conjecture
Result: Appeal Dismissed.
B.N. KARIA, J.
By preferring this Criminal Appeal under Section 378 [1] (3) of the Code of Criminal Procedure, 1973, the State of Gujarat is in appeal against the order of acquittal dated 29th September 2005 passed by the learned Presiding Officer, 4th Fast Track Court, Surat in Sessions Case No. 138 of 2002 made below Exh. 115.
2. Brief facts of the prosecution case are that, the complainant, origin of village Navda, Taluka Dhanduka, District Ahmedabad, when was residing at Katargam, local area of Surat City alongwith her husband and other family members, at that time, her younger sister aged around 15-16 years was also working in a Diamond factory, where she was employed. The complainant came to know about ill motive of the accused no. 1, and therefore, she withdrew the victim from that unit and sent her in another unit. That, on 25th March 2000, the victim went to unit for work and came back at home for lunch at 12 noon, and thereafter, at about 2 O’Clock, she went back to the unit for work. However, at about 2:45 O’Clock, the owner of the unit where the victim was employed, made a call to the complainant informing about absence of victim from work after lunch hour. Upon receiving the message, the complainant went to the Unit and made search of the victim in and around the area, but she could not trace her. Therefore, she understood that the accused no. 1 with a view to fulfill his ill intention and with a view to solemnize marriage with victim had eloped with her. Thereafter, the complainant gave a complaint to Katargam Police Station against the accused on 28th March 2000 alongwith a zexox copy of birth certificate of the victim. On receipt of the complaint, the investigating officer went at different places in search of the victim girl, and in the meantime, recorded statements of concerned witnesses. That, thereafter, the accused no. 1 and victim girl were found from Amreli District. They were consequently sent for medical check up at Surat. It is further alleged in the complaint that the accused no. 2 helped accused no. 1 in fleeing away with the victim. It is also stated that accused no. 3 had provided information to accused no.1 and accused nos. 4 & 5 remained present at the time of their marriage. That, the accused no. 6 had solemnized their marriage ceremony and that the accused no. 7 helped accused no. 1 to run away with the victim. That, the accused no. 8, who is an advocate by profession, knowing fully well that the victim was minor at the time of marriage, had solemnized her marriage with the accused no.1 so also managed to register it by making frivolous documents. On these facts, further investigation was carried out and on completion of the same, accused persons were charge-sheeted to stand trial for the offence punishable under Sections 363, 366, 376, 465, 467, 468, 470, 471, 477 [a], 341, 342 & 114 of the Indian Penal Code read with Sections 4 & 5 of the Prohibition of Child Marriage Act, 2006.
3. At trial, the accused pleaded not guilty and claimed to be tried. Therefore, the prosecution led evidence and on conclusion of the trial, the learned Presiding Officer, 4th Fast Track Court, Surat in Sessions Case No. 138 of 2002 acquitted all the accused by an Order dated 29th September 2005; which is impugned herein.
4. Heard learned APP Mr. Rutvij Oza appearing for the appellant-State; learned advocate Mr. Manoj N Popat for respondent nos. 1 to 4; Mr. Tulsi R. Savani, learned advocate for respondents no. 5, 7 & 8 and Mr. Nishant Lalakiya, learned advocate for the respondent no. 6.
5. It was submitted by learned APP Mr. Rutvij Oza for the prosecution/appellant that by producing sufficient documents, examining the witnesses from the prosecution side, it was clearly proved that minor girl whose birth date being 28th June 1984 as per School Leaving Certificate No. 92, was kidnapped by the accused no. 1 from the lawful guardianship without the consent of such guardians. The prosecution has also proved that the
