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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, A.C. Rao, JJ.
Narendra Gulabpari Goswami - Appellants
Vs.
State of Gujarat - Respondent
Criminal Appeal No. 625 of 2018
Decided On : 07-03-2019
P.O.C.S.O. Act – Section 428 – Indian Penal Code – Section 363, 366 and 376 – Appellant accused 1 challenged judgment and order of conviction and sentence passed by Additional Sessions Judge in Sessions by which Sessions Judge convicted appellant-original accused 1 for offences punishable, appellant 1 to undergo rigorous imprisonment for period of 15 years with fine in default to make payment of fine, directed to undergo further simple imprisonment for period of six months –Held, Nobody from family of victim is examined, even victim does not know place of her birth, nobody knows who recorded date of birth of victim in School, headmaster of School has not examined at all., entry in School Leaving Certificate cannot relied upon to definitely fix age of victim, In our view, trial Court's entire approach in considering question of dates of birth wholly misconceived, burden to prove fact in issue, dates of birth of victim on prosecution, prosecution has also failed to prove date of birth of victim and that victim minor at time of commission of offence –Appeal is allowed. (Para 7.13, 8)
Facts of the case:
Appellant accused 1 challenged judgment and order of conviction and sentence passed by Additional Sessions Judge in Sessions by which Sessions Judge convicted appellant-original accused 1 for offences punishable, appellant 1 to undergo rigorous imprisonment for period of 15 years with fine in default to make payment of fine, directed to undergo further simple imprisonment for period of six months
Findings of the court:
Nobody from family of victim is examined, even victim does not know place of her birth, nobody knows who recorded date of birth of victim in School, headmaster of School has not examined at all., entry in School Leaving Certificate cannot relied upon to definitely fix age of victim, In our view, trial Court's entire approach in considering question of dates of birth wholly misconceived, burden to prove fact in issue, dates of birth of victim on prosecution, prosecution has also failed to prove date of birth of victim and that victim minor at time of commission of offence
Result: Appeal is allowed.
JUDGMENT :
A.C. Rao, J.
1. By way of preferring the present Criminal Appeal under Sec. 374 of the Code of Criminal Procedure, the appellant herein-original accused No. 1 has challenged the judgment and order of conviction and sentence passed by the Additional Sessions Judge & Special Judge (P.O.C.S.O.), Rajkot, in Sessions (P.O.C.S.O.) Case No. 206 of 2013 dated 29-12-2017, by which the Sessions Judge convicted the appellant-original accused No. 1 for the offences punishable under Secs. 363, 366 and 376 of Indian Penal Code ("I.P.C." for short). The Sessions Judge also convicted the appellant-accused No. 1 for the offences punishable under Secs. 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 ("P.O.C.S.O. Act" for short).
For the offence punishable under Sec. 363 of Indian Penal Code, the Sessions Judge sentenced the appellant-accused No. 1 to undergo rigorous imprisonment for a period of five years with fine of Rs. 5,000/- and in default to make payment of fine, directed to undergo further simple imprisonment for a period of two months.
For the offence punishable under Sec. 366 of Indian Penal Code, the Sessions Judge sentenced the appellant-accused No. 1 to undergo rigorous imprisonment for a period of seven years with fine of Rs. 10,000/- and in default to make payment of fine, directed to undergo further simple imprisonment for a period of three months.
Considering the provisions of Sec. 42 of P.O.C.S.O. Act, and the punishment provided for the offences punishable under Sec. 6 of P.O.C.S.O. Act, and Sec. 376 of I.P.C., and since the punishment for the offence under Sec. 6 is higher, no separate punishment for the offence punishable under Sec. 4 of P.O.C.S.O. Act, and for the offence under Sec. 376 of I.P.C. has been awarded, however, for the offence punishable under Sec. 6 of the P.O.C.S.O. Act, the learned Sessions Judge sentenced the appellant-accused No. 1 to undergo rigorous imprisonment for a period of 15 (fifteen) years with fine of Rs. 15,000/- and in default to make payment of fine, directed to undergo further simple imprisonment for a period of six months.
The learned Sessions Judge was pleased to grant benefit of set-off under Sec. 428 of the Code of Criminal Procedure "Cr.P.C." for short). The learned Sessions Judge ordered to undergo all the sentences concurrently.
2. The case of the prosecution, in a nutshell is as under:
The complainant-victim lodged F.I.R. being C.R. No. I-182 of 2013 with Gandhigram Police Station, for the offences punishable under Secs. 363, 366, 376, 406, 504, 506(2), read with Sec. 4 of I.P.C. and under Secs. 3, 4, 5 and 6 of P.O.C.S.O. Act. In the F.I.R. it is stated by the victim that she is aged 16 years and 9 months. The victim gave complaint before the Mahila Police Station stating that she was residing in S.K. Chowk, Jalaram Farsan Street, Gandhigram since last two months with her brother. Prior thereto she was residing in a rented house known as "Aman" situated in Limda Chowk, Gavlivad Street. She stated that since last 7 months she was residing in Rajkot and her brother was residing with her since last five months. She stated that she was serving in Airtel and prior thereto she was working in DOCOMO. Her brother is studying in Talala and her mother is residing in Venal village alone. Divorce has taken place of her mother and father. She has studied upto 12th Standard and her date of birth is 24-10-1996.
The victim has further stated in the complaint that before one and quarter year when she was residing in Kodinar with her mother and brother, she associated with Mukesh Bavaji as her brother. As she wanted to purchase Scooty, Mukesh had given number of Narendrapari Gulabpari-accused No. 1, who is his cousin brother (uncle's son) and who was serving in Hero Honda. Mukesh asked her to call Narendrapari. Therefore, the victim called Narendrapari for purchasing Scooty,
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