[1.0] Present Criminal Appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the appellant herein original accused to quash and set aside the impugned judgment and order of conviction and sentence passed by the learned Additional City Sessions Judge, Court No.7, Ahmedabad dated 31.07.2012 in Sessions Case No.93 of 2010 convicting the appellant herein original accused for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and directing the appellant to undergo RI for a period of one year and six months and fine of Rs.1000/ for the offence punishable under Section 363 of the IPC and on default of payment of fine to undergo further SI for a period of one month; to undergo RI for a period of two years and fine of Rs.1000/ for the offence punishable under Section 366 of the IPC and on default of payment of fine to undergo further SI for a period of two months and to undergo RI for a period of three years and fine of Rs.2000/ for the offence punishable under Section 376 of the IPC and on default of payment of fine to undergo further SI for a period of three months; The learned Sessions Court has passed an order that all the above sentences of imprisonment shall run concurrently. [2.0] That the original complainant father of the prosecutrix – Durga Dhirubhai lodged an FIR against the appellant herein original accused for the offences punishable under Sections 363, 366 and 376 of the IPC alleging interalia that on 06.08.2009 at about 14.30 to 15.00 hours, the accused had kidnapped his minor girl Durga aged about 14 years from the custody of her parents with an intention to have sexual intercourse with her. The investigating officer investigated the case, drawn the panchnamas and recorded the statement of the witnesses. That on conclusion of the investigation, the IO filed the chargesheet against the appellant herein original accused before the learned Metropolitan Magistrate, Ahmedabad for the offences under Sections 363, 366 and 376 of the IPC. As the offences were exclusively triable by the Court of Sessions, learned Metropolitan Magistrate committed the case to the City Sessions Court, Ahmedabad under Section 209 of the CrPC. That charge came to be framed against the accused for the offences under Sections 363, 366 and 376 of the IPC that on 06.08.2009 at about 14.30 to 15.00 hours the accused had kidnapped minor girl Durga Dhirubhai aged about 14 years from the custody of her parents by giving promise to marry with her and with an intention to marry her and to have illicit sexual intercourse with her and thereby the accused has committed offence under Sections 363, 366 and 376 of the IPC. That the accused pleaded not guilty and therefore, he came to be tried for the aforesaid offences.
[2.1] That to prove the case against the accused, the prosecution examined 15 witnesses. The original complainant – father of the prosecutrix came to be examined as PW4 at Exh.16. The prosecutrix herself came to be examined at Exh.19 as PW15. The prosecution also examined Dr. Ramlakhan Baranwal (PW6) at Exh.21 to prove the sexual intercourse by the accused with the prosecutrix. To prove the age of the victim the prosecution examined Principal of the school, who issued the school leaving certificate (Exh.18), Ramilaben J. Barejiya (PW12) at Exh.32. The prosecution also examined the IO as well as the panch witnesses. To prove the case against the accused and to prove that the victim at the relevant time was aged less than 16 years, the prosecution also produced/led documentary evidences inclusive of the school leaving certificate/doctor’s certificate/medical report to suggest the age of the victim between 14 and 16 years and other documentary evidences. That thereafter after the evidence on behalf of the prosecution was closed, further statement of the accused was recorded under Section 313 of the CrPC. That on appreciation of evidence the learned Sessions Court has held the age of the victim below 16 years and also held that the accused had sexual intercourse with the victim, who was aged 14 years and 2 months (less than 16 years) and thereby committed the offence under Sections 363, 366 and 376 of the IPC and has directed the appellant herein – original accused to undergo sentence for the aforesaid offence as stated herein above.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Sessions Court convicting the appellant herein – original accused for the offences under Section 363, 366 and 376 of the IPC and ordering to undergo the sentence as stated herein above, the appellant herein – original accused has preferred the present Criminal Appeal under Section 374 of the CrPC.
[3.0] Shri Vasant S. Shah, learned advocate appearing on behalf of the appellant has stated at the Bar that despite his earlier instructions to the accused to surrender, the appellant – accused has not surrendered and has absconded and there is no further instruction from him. It is submitted that as is on record and is appearing on behalf of the appellant, he has submitted the case on merits.
[3.1] Shri Shah, learned advocate appearing on behalf of the appellant – convict has materially erred in holding the appellant guilty for the offence under Sections 363, 366 and 376 of the IPC. It is submitted that as such it is not proved that the victim at the relevant time was aged 14 years and 2 months and/or below the age of 16 years. It is submitted that even as per the certificate issued by the doctor/medical report the age of the victim was between 15 to 17 years and therefore, relying upon the decision of the Hon’ble Supreme Court in the case of Mussauddin Ahmed vs. State of Assam reported in (2009)14 SCC 541, it is submitted that the age of the victim should be considered above 16 years. Relying upon the decision of the Hon’ble Supreme Court in the case of Rajinder Chandra vs. State of Chhattisgarh and Anr. reported in AIR 2002 SC 748, it is submitted that as observed by the Hon’ble Supreme Court in the aforesaid decision in a medical report there can be a variation of two years (+ or ) and therefore, as in the medical certificate/medical report the age of the victim is stated to be between 15 to 17 years, it cannot be said that the appellant has committed offence under Section 363 read with Section 366 of the IPC. It is further submitted that as such the accused and the victim belong to the same community and they were neighbors and were knowing each other and therefore, it cannot be said that the appellant has committed any offence as alleged for which he has been convicted.
[3.2] It is further submitted by Shri Shah, learned advocate appearing on behalf of the appellant – accused that even in the school register on the basis of which the school leaving certificate has been issued, and in which the date of birth of victim is mentioned as 01.06.1995, there are so many other students whose date of birth is mentioned as 01.06.1995 and 02.06.1995 and therefore, it is to be presumed that in the school register the entry was made without verifying the correct date of birth.
[3.3] It is further submitted that therefore, if the age of the victim is considered to be above 16 years and that the victim had gone with the accused voluntarily and had sexual intercourse voluntary, it cannot be said that the appellant has committed any offence under Sections 363, 366 and 376 of the IPC.
Making above submissions and relying upon above decision of the Hon’ble Supreme Court in the case of Mussauddin Ahmed vs. State of Assam reported in (2009)14 SCC 541 as well as in the case of Alamelu and Another vs. State represented by Inspector of Police reported in (2011)2 SCC 385, it is requested to allow the present Appeal and to quash and set aside the impugned judgment and order of conviction and sentence imposed by the learned Sessions Court.
[4.0] Present Appeal is opposed by Ms. C.M. Shah, learned Additional Public Prosecutor appearing on behalf of the State of Gujarat. It is submitted that as such on appreciation of evidence the learned Sessions Court has specifically held that the age of the victim was below 16 years and therefore, the appellant – original accused has committed the offence under Sections 363, 366 and 376 of the Indian Penal Code, 1860. It is submitted that as such the prosecution has proved beyond doubt by leading cogent evidence that age of the victim at the relevant time was 14 years and 2 months. It is submitted that as such the decisions of the Hon’ble Supreme Court in the case of Mussauddin Ahmed (Supra) as well as in the case of Alamelu and Another (Supra) which are relied upon by the learned advocate appearing on behalf of the appellant would not be applicable to the facts of the present case in view of the clinching evidence on record with respect to the age of the victim i.e. 14 years and 2 months. She has also relied upon the decision of the Hon’ble Supreme Court in the case of Sidheswar Ganguly v. State of West Bengal reported in AIR 1958 SC 143; 1991 Criminal Law Journal Pg.8491 (Head Note B) and the decision of this Court in the case of Ashokkumar Amrutlal Patel v. State of Gujarat reported in 2003(4) GLR 3164. It is further submitted by Ms. C.M. Shah, learned APP that as such though the impugned judgment and order has been passed by the learned Additional Sessions Judge on 31.07.2012 convicting the appellant for the offences punishable under Sections 363, 366 and 376 of the IPC, thereafter the appellant has not surrendered to the jail authority and has absconded (even as per the learned advocate appearing on behalf of the appellant). Therefore, it is requested to dismiss the present Criminal Appeal.
[5.0] Heard learned advocates appearing on behalf of respective parties at length and perused the impugned judgment and order of conviction passed by the learned Sessions Court convicting the appellant herein – original accused for the offences punishable under Sections 363, 366 and 376 of the IPC. At the outset it is required to be noted that the only contention and/or submission made by the learned Counsel appearing on behalf of the appellant is that the learned Sessions court has materially erred in considering the age of the victim below 16 years and consequently convicting the appellant for the offences punishable under Sections 363, 366 and 376 of the IPC. Relying upon the decisions of the Hon’ble Supreme Court in the case of Mussauddin Ahmed (Supra) as well as in the case of Alamelu and Another (Supra), it is submitted that as, in the medical report the age of the victim is mentioned between 15 to 17 years, the benefit of two years + or – can be given and therefore, the learned Sessions Court ought to have considered the age of the victim above 16 years. Except the above, no other submissions have been made. The aforesaid cannot be accepted. It is required to be noted that as such to prove the age of the victim, the prosecution has produced on record the school leaving certificate of the victim showing her date of birth as 01.06.1995. To prove the above the school leaving certificate of the prosecutrix issued by Adarsh Primary School, Ratanpura is produced at Exh.18 which is produced during the course of recording of evidence/deposition of the complainant Dhirubhai Bachubhai (PW4) who is father of prosecutrix Durga. Even to prove the certificate (Exh.18) issued by Adarsh Primary School, Ratanpura, the prosecution has examined Ramilaben J. Barejiya (PW12), Principal of Adarsh Primary School, Ratanpura at Exh.32 who had brought with her original General Register of the school at the time of her deposition and by showing entry No.2003. Thus, prosecution has failed beyond doubt and by overwhelming evidence that the date of birth of the prosecutrix is 01.06.1995 and at the time of the incident on 06.08.2009 her age was 14 years and 2 months and 5 days i.e. below the age of 16 years.
[5.1] Now, so far as the contention on behalf of the appellant that relying upon the decisions of the Hon’ble Supreme Court in the case of Mussauddin Ahmed (Supra) as well as in the case of Alamelu and Another (Supra) that as in the medical certificate, the age of the prosecutrix is mentioned as between 15 to 17 years and therefore, benefit of 2 years + or – can be given is concerned, it is required to be noted that the aforesaid is required to be considered in a case where there is no other evidence on record to show and/or prove the age of the prosecutrix. When there is a clinching evidence on record in the form of the certificate issued by the school proved by examining the Principal of the School, the prosecution has proved the date of birth of the prosecutrix as 01.06.1995 and consequently the age of the prosecutrix at the time of incident as 14 years, 2 months and 5 days, said benefit of two years + or – cannot be given to the appellant as contended by the learned advocate appearing on behalf of the appellant.
[5.2] Now, so far as the reliance placed upon the decision of the Hon’ble Supreme Court in the case of Mussauddin Ahmed (Supra) and in the case of Alamelu and Anr. (Supra) are concerned, considering the evidence on record and on facts the said decision would not be applicable to the facts of the present case. In the case before the Hon’ble Supreme Court in the case of Mussauddin Ahmed (Supra), it was found by the Hon’ble Supreme Court that neither the parents of the prosecutrix nor any other family members who could be most reliable and natural witness on the point of her age were examined and the doctor, who examined her, opined that she was aged about 18 years, while the prosecutrix stated that she was only 13 years at the time of alleged incident, the Hon’ble Supreme Court drawn the adverse inference against the prosecutrix. Similarly, in the case of Alamelu and Anr. (Supra), the transfer certificate of the Government School showing the age of the prosecutrix was not duly proved and the prosecution failed to prove that girl was minor at the relevant time. The Hon’ble Supreme Court granted benefit of doubt to the accused. So far as the case on hand is concerned, as stated hereinabove, as such the original complainant – father of the prosecutrix has been examined at Exh.16 and the prosecutrix herself has been examined at Exh.19 and to prove the age of the victim, the prosecution has examined Principal of the School who issued the School Leaving Certificate (Exh.18) and the School Leaving Certificate showing the date of birth of the prosecutrix as 14 years and 2 months has been duly proved by leading the evidence. Therefore, as such there is no question of considering any medical certificate and/or medical opinion. Considering the above, when the prosecution has proved the date of birth of the prosecutrix as 01.06.1995 and consequently the age of the prosecutrix at the time of incident as 14 years 2 months and 5 days, no illegality has been committed by the learned trial Court in convicting the appellant – accused for the offence under Section 376 of the IPC, which calls for interference of this Court.
[5.3] It is also required to be noted at this stage that even the appellant has absconded and has not surrendered to the jail authority.
[6.0] In view of the above and for the reasons stated above, there is no substance in the present Criminal Appeal as no error and/or illegality has been committed by the learned Sessions Court in convicting the appellant herein – original accused for the offences punishable under Sections 363, 366 and 376 of the IPC. Under the circumstances, present Criminal Appeal deserves to be dismissed and is, accordingly, dismissed.
Sd/-
(M.R. Shah, J.) Ajay