Criminal Appeal No. 1438 of 2012. Case: Manubhai Panchabhai Sabaliya T. Koli Vs State of Gujarat. High Court of Gujarat (India)
| Case Number | Criminal Appeal No. 1438 of 2012 |
| Counsel | For Appellant: Hardik B. Shah, Advocate and For Respondents: L.B. Dabhi, APP |
| Judges | K. M. Thaker, J. |
| Issue | Bombay Police Act, 1951 - Section 135; Code of Criminal Procedure, 1973 (CrPC) - Sections 313, 374; Indian Evidence Act, 1872 - Sections 114, 114A, 118; Indian Penal Code 1860, (IPC) - Sections 375, 376, 376(2), 376(2)(f), 506(2); Juvenile Justice (Care and Protection of Children) Act, 2000 - Section 68(1) |
| Judgement Date | October 26, 2015 |
| Court | High Court of Gujarat (India) |
Judgment:
K. M. Thaker, J.
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This appeal under Section 374 of the Code is directed against the judgment dated 31.8.2012 below Exh. 71 passed by the learned Additional Sessions Judge, Limbdi, District: Surendranagar in Sessions Case (Old Case) No. 68 of 2011 (New Case No. 70 of 2012) whereby the learned Court has convicted the appellant, i.e. original accused No. 2 for the offence under Section 376 of IPC and the appellant - original accused No. 2 is sentenced to undergo rigorous imprisonment for 10 years and he is also ordered to pay fine of Rs. 10,000/- and in default further rigorous imprisonment for a period of 6 months. The appellant is also convicted for the offence under Section 506(2) of IPC and is sentenced to undergo rigorous imprisonment for a period 1 year and fine of Rs. 250/- and in default further rigorous imprisonment for a period of 15 days. The appellant is also convicted for the offence under Section 135 of the Bombay Police Act and is sentenced to undergo rigorous imprisonment for a period 6 months and fine of Rs. 250/- and in default further rigorous imprisonment for a period of 1 month.
1.1 So far as the accused No. 1 is concerned, learned trial Court has recorded judgment of acquittal and acquitted the accused No. 1 by giving benefit of doubt and the Court is informed that any proceedings by the complainant or the victim or by the State is not filed against the decision acquitting accused No. 1.
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The case of the prosecution is that on 5.4.2011 at about 9.00 a.m. as a part of the conspiracy hatched with accused No. 2, the accused No. 1, who happens to be aunt of the victim, asked the victim to join her and accompany her as she was going to her field and that the victim, i.e. minor girl, aged 15 years, joined the accused No. 1. When they reached the field, the accused No. 2 was present there and was sitting on a cot - bedstead. The accused No. 1 told the victim girl that she will return in short while and till then, she may sit there with the accused No. 2 and wait for her. The accused No. 1 then left the victim girl with the accused No. 2. After the accused No. 1 left, the accused No. 2 threatened the victim by showing a knife and then at knife point he pushed her to the cot and then gagged the victim by putting a piece of cloth in her mouth and forcibly, and without her consent, committed sexual intercourse with her and thereby committed the offence punishable under section 376 of IPC. The accused No. 2 also threatened the victim girl that if she told anybody about the incident then he would kill her. At the time when accused No. 2 committed the offence and threatened the victim at knife point, a notification issued by the Magistrate under Section 135 of the Bombay Police Act was in force and that, therefore, the accused also committed offence under Section 135 of the Bombay Police Act.
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The first informant is father of the victim who submitted written/private complaint in the Court of Judicial Magistrate, Chotila on 25.4.2011 and pursuant to the order passed by the learned Magistrate, the complaint was registered as M Case No. 1 of 2011. During the course of investigation, various statements were recorded and panchnama were drawn.
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Upon completion of the investigation, charge-sheet came to be filed. Since the case would be triable by the Sessions Court, learned Magistrate committed the case to the learned Additional Sessions Judge, Limbdi, Surendranagar.
4.1 The learned trial Court framed the charge against accused No. 1 and 2 at Exh. 5, to which both the accused pleaded not guilty and claimed to be tried. The prosecution examined 17 witnesses including following persons/witnesses:
4.2 The prosecution relied on panch witnesses and also relied on 27 documents, details whereof are mentioned in paragraph No. 5 of the impugned judgment.
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Then statement of the accused persons, under Section 313 of the Code of Criminal Procedure, were recorded. In their further statement, both the accused denied all incriminating evidence and circumstances emerging from the evidence adduced by the prosecution and put to them by the learned trial Court and both the accused stated that they did not commit the offence. In his further statement, the accused No. 2 claimed that on account of land dispute between the father of the victim and his family, he has been falsely implicated in the case.
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After considering and evaluating, oral and documentary evidence on record, and after considering the submissions by both sides, learned trial Court recorded acquittal in favour of accused No. 1 and recorded conviction of the accused No. 1 for the offence punishable under sections 376 and 506(2) of IPC and section 135 of the Bombay Police Act and awarded sentence as referred to hereinabove in this judgment. The conviction judgment dated 31.8.2012 and the sentence have given rise to this appeal.
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At the outset, Mr. Shah, learned counsel for the appellant declared, stipulated and submitted that considering the oral and documentary evidence on record and more particularly in light of the evidence of the victim girl (PW-10) Exh. 42, the appellant (i.e. the accused No. 2) does not challenge the conviction and does not assail the judgment recording conviction against him (i.e. the accused No. 2) and restricts this appeal only qua the sentence with a request and prayer to reduce the sentence to the extent undergone.
7.1 Mr. Shah, learned counsel for the appellant submitted that (a) there are contradictions in the evidence of the victim and so also the complainant, (b) none of the panch witnesses have supported the case of prosecution and the panchnama and that the panch witnesses are declared hostile and (c) there is delay in filing the complaint, inasmuch as the complaint in respect of the incident which occurred on 5.4.2011, is filed on 25.4.2011, (d) he also claimed animosity between the family of the victim and the accused No. 2 on account of land dispute, and (e) he also claimed love affair between the accused No. 2 and the victim and they were frequently meeting and had also exchanged gifts and (f) there were no marks of any external injury thus there was no sign of force and that therefore, the judgment recording conviction against the appellant may be set aside. However, immediately, he reiterated the request and submission which he made at the outset viz. considering the evidence the appellant does not challenge the conviction but having urged above mentioned submission and having regard to the age of the appellant and having regard to the fact that at the relevant time victim's age, according to the decision by learned trial Court, was border age i.e. 15 years and 10 months and having regard to the fact that the appellant has undergone sentence of 4 years and 4 months and considering age of the appellant and also considering that there was affair between him and the victim, the appellant requests and urges that the sentence may be reduced to the extent undergone. Learned counsel for the appellant submitted that while fixing quantum of sentence, learned trial Court did not consider the said facts, including age of the accused, who at the relevant time was 22 years old.
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Learned APP submitted that the appeal deserves to be dismissed. Learned APP emphasized that learned APP submitted that the appeal deserves to be dismissed. Learned APP emphasized that the victim is a minor girl and her age is established by evidence of the principal of the school and her school leaving certificate and the offence is committed by her uncle. Learned APP submitted that the delay caused in lodging the complaint is satisfactorily explained and that merely because some delay has occurred, it does not frustrate the case of the prosecution in any manner or to any extent. With reference to the contentions by learned counsel for the appellant that panch witnesses have not supported the case of the prosecution and are declared hostile and that therefore, the panchnama are not proved. The learned APP submitted that now it is common that in almost all cases, the panch witnesses turn hostile and Hon'ble Apex Court has also observed and held that merely because panch witnesses turn hostile, prosecution case would not fail. In response to the submission by learned counsel for the appellant that the accused No. 2 and the victim had love affair, the learned APP submitted that even otherwise, the said aspects are not relevant in view of the fact that at the relevant time, the victim was minor and her age was less than 16 years. The learned APP submitted that mere absence of external injury is no ground to reject and discard case of the prosecution. So as to support his submission, learned APP relied on the decisions in cases of Hem Raj S/o. Moti Ram v. State of Haryana [(2014) 2 SCC 395], Munna v. State of Madhya Pradesh [(2014) 10 SCC 254], Mukesh v. State of Chhattisgarh [(2014) 10 SCC 327] and Krishan v. State of Haryana [(2014) 13 SCC 574].
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In rejoinder, learned counsel for the appellant again referred to the age of the victim and he submitted that the victim's age is not established and while repeating his objection with reference to the victim's age the learned counsel for the appellant reiterated that the appellant does not challenge the conviction but having regard to the fact that the victim was not minor and the prosecution has failed to prove victim's age and even according to the findings by learned trial Court, the age of the victim was border age at the relevant time i.e. 15 years and 10 months and the age of accused was 22 years and in light of such facts, the sentence may be reduced to the extent of sentence undergone. Learned counsel for the appellant relied on unreported judgment by Division Bench dated 12.9.2011 in Criminal Appeal No. 1231 of 2007 to support his submissions and request to reduce the sentence.
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In view of the said submission by learned counsel for the appellant, it would not be necessary to...
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