ARVINDBHAI JAMNADAS SUTHAR v. THE STATE OF GUJARAT

Judgment

1. Heard learned advocate Mr.H.K. Patel for the appellant and learned A.P.P. Mr.Bhate for the respondent-State.

2. This appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 16.10.2006 CR.A/234020/2006 passed by the learned Additional Sessions Judge, JUDGMENT Court No.5, Ahmedabad in Sessions Case No.307 of 2005 by which the learned Judge imposed sentence under Section 376 of IPC for seven years' R.I. and fine of Rs.1,000/-, in default, S.I. for three months, under Section 363 of IPC for three years' R.I. and fine of Rs.500/-, in default, S.I. for one month and under Section 366 of IPC for five years' R.I. and fine of Rs.1,000/-, in default, S.I. for three months.

3. The short facts giving rise to the present appeal are as under.

4. As per the prosecution case, the prosecutrix, who is the daughter of complainant-Babarbhai Merajbhai Rabari, was abducted by the appellant and the other accused persons from the lawful custody of her parents. The appellant visited the house of the complainant and, after giving allurement to the daughter of the complainant, took her from the custody of her parents with a view to have illicit intercourse with the prosecutrix. On the strength of the complaint given by Babarbhai Merajbhai Rabari, the investigation was set in motion. The prosecutrix was sent to the hospital in order to obtain injury certificate. Panchnama of the clothes put on by the prosecutrix as well as the accused was prepared in the presence of the panch-witnesses. The accused was sent to the hospital with a view to obtain necessary injury certificate. The CR.A/234020/2006 JUDGMENT muddamal recovered in the presence of panch- witnesses was sent to F.S.L. and receipt in that regard was obtained from the F.S.L. The statements of the witnesses and various persons from the neighbourhood were recorded during the course of investigation. On receipt of the injury certificate as well as report from the F.S.L. and serological report of the F.S.L., the appellant and other accused persons were charged for the offence punishable under Sections 376, 363 and 366 of IPC and they were produced before the learned Metropolitan Magistrate, Ahmedabad who, in turn, committed the case to the learned

Sessions Court under Section 209 of the Code of Criminal Procedure, as the case is exclusively triable by the Sessions Court. The case of the appellant was numbered as Sessions Case No.307 of 2005 by the Sessions Court. The chargesheet against the appellant was framed vide Exh.2 for the offence punishable under Sections 376,363 and 366 of IPC and the appellant pleaded not guilty to the charge levelled against him. Therefore, the matter was set down for the full-fledged trial before the Sessions Court.

5. The prosecution has, in order to prove inextricable involvement of the appellant in the commission of offence, examined the following witnesses:- CR.A/234020/2006 Sr. No. PW

1. 2.

7. 1 2 3 4 5 6 7 Names JUDGMENT Exhs. 6 7 Prosecutrix Babarbhai Merajbhai Rabari- father of the prosecutrix Dr.Bhavin Shyamlal Shah who had examined prosecutrix Dr.Bhairvi Balvant Pande who had examined the accused Khemchandbhai Galabhai Parmar- Principal of the school of prosecutrix. Amrutlal Harjibhai Makwana – ASI, Banas Kantha Ratansinhbhai Bhanabhai Patel- investigation officer 10 12 14 23 31

6. The prosecution has also placed reliance on the following documentary evidences vide list at Exh.5. Sr. No.

6. 7. Documents Exhs. 32 Complaint dated 22.04.2005 given by the complainant 8 Panchnama dated 23.04.2005 of seizure of cloths put on by the prosecutrix Panchnama dated 26.04.2005 of 9 seizure of cloths put on by the accused Injury certificate dated 04.05.2005 issued to the prosecutrix Injury certificate dated 28.04.2005 issued to the accused Discharged note dated 14.05.2005 26 Receipt dated 17.05.2005 given by 27 11 13 CR.A/234020/2006 Documents JUDGMENT Exhs. Sr. No.

9. 10.

11. F.S.L. Covering letter dated 16.08.2005 from the F.S.L. Report dated 01.08.2005 of F.S.L. Serological report dated 11.08.2005 of F.S.L. Closing pursis dated 12.07.2006 28 29 30 33

7. At the conclusion of the trial, the learned Judge recorded the statement of the appellant under Section 313 of the Code and also narrated the incriminating circumstances against him. The appellant pleaded in the further statement that false case was foisted on him and he was falsely implicated in the commission of offence by the complainant. The learned Additional Sessions Judge framed issues on the strength of the oral deposition and documentary evidences and held that considering the depositions adduced by the prosecutrix-PW-1 vide Exh.6 and father of the prosecutrix – Babarbhai Merajbhai Rabari – PW-2 vide Exh.7, the prosecution has established the involvement of the appellant in the commission of offence beyond reasonable doubt. The minor girl was abducted by the appellant without consent of her guardian with a view to have illicit intercourse with her and this fact has been successfully established by the prosecution by adducing cogent and clinching evidences of the CR.A/234020/2006 prosecutrix as well as the complainant vide JUDGMENT Exhs.6 and 7 of the case. The learned Judge further held that the depositions adduced by Dr. Bhavin Shyamlal Shah PW-3 vide Exh.10 and Dr.Bhairavi Balvant Pandey PW-4 vide Exh.12 corroborate the deposition adduced by the prosecutrix vide Exh.6, as Dr.Bhavin Shah had examined the prosecutrix and given injury certificate dated 04.05.2005 vide Exh.11 and Dr.Bhairavi Pandey had examined the accused and given the injury certificate dated 28.04.2005 to the accused vide Exh.13. Thus, the necessary corroboration is established by the prosecution in the facts and circumstances of the case. The principal of the school-Khemchandbhai Galabhai Parmar - PW-5 has been examined vide Exh.14. The learned Judge held that on the basis of the deposition adduced by – Khemchandbhai Parmar, which is supported by the documentary evidence, the age of the girl was 14 years and 8 months on the date of incident. Thus, considering the provisions of Section 375, the learned Judge convicted the appellant for the offence punishable under Sections 376,363 and 366 of IPC. The depositions adduced by ASI – Amrutlal Harjibhai Makwana vide Exh.23 and Ratansinhbhai Bhanabhai Patel I.O. vide Exh.31, make it abundantly clear that the other procedural formalities, such as panchnama of seizure of the clothes of the prosecutrix vide Exh.8 and the panchnama of seizure of the cloths of the accused CR.A/234020/2006 vide Exh.9, were made in the presence of the JUDGMENT panch-witnesses. Thus, after appreciating the entire evidence on record of the case, it is held by the learned Judge that the prosecution has proved, beyond reasonable doubt, the involvement of the appellant in the commission of offence punishable under Sections 376,363 and 366 of IPC and convicted the appellant and sentenced him to suffer imprisonment under Section 376 of IPC for seven years' R.I. and fine of Rs.1,000/-, in default, S.I. for three months, under Section 363 of IPC for three years' R.I. and fine of Rs.500/, in default, S.I. for one month and under Section 366 of IPC for five years' R.I. and fine of Rs.1,000/-, in default, S.I. for three months.

8. The learned advocate representing the appellant submitted that the learned Judge has, while convicting the appellant for the offence punishable under Sections 363,366 and 376, not appreciated the evidence in its proper perspective. The learned advocate submitted that even otherwise the order of conviction and sentence is contrary to the provisions of law and evidence on record of the case and it is required to be quashed and set aside. The learned advocate submitted that there are inherent infirmities in the deposition adduced by the prosecution and since it goes to the root of the matter and affects the credibility of the prosecution case, the judgment and order passed by the learned CR.A/234020/2006 Judge is required to be quashed and set aside and JUDGMENT the appellant deserves to be exonerated for the offence punishable under Sections 363,366 and 376 of IPC. The learned Judge has also committed egregious error in believing the school leaving certificate produced on behalf of the prosecution and considering the age of the prosecutrix as 14 years and 8 months on the date of the incident. The learned Judge ought to have appreciated that the prosecutrix had gone with the appellant as per her own will and desire and no force was exerted on the prosecutrix by the appellant.

9. The learned Judge has committed error by convicting the appellant for the offence punishable under Sections 363,366 and 376 of IPC, as the basic ingredients of Sections 363,366 and 376 of IPC were not attracted in the facts and circumstances of the case. Thus, it is submitted by the learned advocate that the order of conviction passed by the learned Judge is required to be quashed and set aside.

10. Learned A.P.P. Mr.Bhate representing the State submitted that on perusal of the deposition adduced by the prosecutrix – PW-1 vide Exh.6, it becomes clear that she was abducted by the appellant after giving allurement to her from the lawful guardianship of her parents. The deposition adduced by the prosecutrix gets necessary corroboration from the father of the CR.A/234020/2006 prosecutrix – Babarbhai Merajbhai Rabari, who has JUDGMENT been examined vide Exh.7. The learned A.P.P. submitted that the depositions adduced by Dr.Bhavin vide Exh.10 and Dr.Bhairavi vide Exh.12 established that the certificate issued by the doctors vide Exh.11 and 13 amply prove that the prosecutrix was induced by the appellant and after giving inducement, the rape was committed on her against her will and desire. The report issued by the F.S.L. vide Exh.29 and serological report vide Exh.30 further corroborate the prosecution story indicating the involvement of the appellant in the commission of offence. Even panchnama with regard to the seizure of the clothes put on by the prosecutrix vide Exh.8 and panchnama of the seizure of the clothes of the accused vide Exh.9 prove the involvement of the appellant in the commission of offence. Thus, considering the evidence on record of the case, the learned A.P.P. submitted that the prosecution has established each and every link connecting the appellant with the commission of offence by adducing clinching evidence in the matter and, therefore, no interference is called for in the judgment rendered by the learned Additional Sessions Judge and the appeal deserves to be dismissed.

11. I have heard learned advocate Mr.H.K. Patel for the appellant and learned A.P.P. Mr.Bhate for the respondent-State at length and in great CR.A/234020/2006 detail. JUDGMENT

12. On appreciating and reevaluating the evidence on record of the case, it becomes clear that the prosecutrix, who was aged 14 years and 8 months on the date of incident, has in her deposition indicated the involvement of the appellant in the commission of the act of abduction and subsequent rape on her. There is no reason to disbelieve or discard the deposition adduced by the prosecutrix. The deposition adduced by the prosecutrix is supported by the complainant- Babarbhai Merajbhai Rabari who has been examined vide Exh.7. He has also given the complaint against the appellant when his daughter was abducted and subsequently, the rape was committed on her. Even though, there is no need for corroboration. There is ample corroboration in the form of depositions adduced by Dr.Bhavin, PW- 3 at Exh.10 and Dr.Bhairavi – PW-4 at Exh.12. Both the doctors had given the injury certificate to prosecutrix vide Exh.11 and to the accused vide Exh.13. The Panchnama of seizure of the clothes of the prosecutrix vide Exh.8 and Panchnama of the clothes put on by the accused vide Exh.9 further corroborate the prosecution story indicating inextricable involvement of the appellant in the commission of offence. Further corroboration is forthcoming from the report of the F.S.L. produced at Exh.29 as well as serological report at Exh.30 to the present case. CR.A/234020/2006 JUDGMENT

13. Thus, after going through the entire oral depositions and documentary evidence of the case, the prosecution, in my considered view, has successfully established the involvement of the appellant in the commission of offence punishable under Sections 363,366 and 376 of IPC and as there is no infirmity in the judgment rendered by the learned Additional Sessions Judge, Court No.5, Ahmedabad, the order of conviction and sentence imposed by the learned Judge is required to be upheld.

14. For the foregoing reasons, the appeal preferred by the appellant is without any substance and is liable to fail and the same is hereby dismissed. The Muddamal is to be destroyed in terms of order dated 16.10.2006 passed by the learned Additional Sessions Judge, Court No.5, Ahmedabad in Sessions Case No.307 of 2005. Hitesh (H.B.ANTANI,J.)