(Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) State has filed Criminal Misc. Application No.11747 of 2011 for leave to appeal. The main Criminal Appeal No.1014 of 2011 is directed against the judgment and order dated 10.05.2011 by 3rd Additional Sessions Judge, Gandhidham-Kachchh in Sessions Case No.57 of 2007 whereby the trial Court has acquitted the respondent-accused of offences under section 363, 366 and 376 of the Indian Penal Code, 1860.
2. Learned Additional Public Prosecutor made available copies of the evidence on record of the trial Court. Therefore, we have proceeded to consider the appeal at this stage itself. For that purpose, we have heard learned APP in extenso who took us through the entire evidence.
3. The prosecution case briefly stated was that complainant's niece being fourth daughter of his brother Gulam Husain, was lured by respondent-accused, who promising her to marry, kidnapped her and eloped with her at about 8.00 pm on 29.06.2007. Complaint (Exh. 13) was lodged on 13.07.2007, pursuant to which FIR was registered on 14.07.2007 at Rapar Police Station for the offences under section 363 and 366 of the Indian Penal Code, 1860. The charge of offence under section 376 was subsequently added upon report by the Investigating Officer after arrest of the accused.
4. Having carefully considered the evidence on record, the evidence of victim herself (PW-5 Exh. 16) and that of Dr.Mohammad Iqbal Khatri (PW-11 Exh. 22) were found to be of relevance. The victim (PW-5) in her evidence deposed that she stayed with her parents, five sisters and three brothers in rented house at Rapar. Before 8-9 months, when other family members had been watching television on the upstairs, and she had come to downstairs of the house to drink water and was alone, at that time respondent came there. He lured her by promising to marry and kidnapped her. Both went to village Samakhiyali in jeep and from Samakhiyali to Rajkot in luxury bus. At Rajkot they stayed in guest house where respondent attempted to have physical relationship with her by force. It was further deposed by the victim that when she told him that they should first marry, the respondent stated that they would marry at Ajmer. Thereafter, they went to Ajmer and they also stayed in guest house for 2-3 days and respondent had physical relationship with her in the night as husband and wife. She stated that on her asking again about marriage, respondent said that he had no money and then said that they would marry at Ahmedabad in court. They travelled to Ahmedabad where again respondent stated that he had no money and by going to Bagasara they would earn there and would marry.
4.1 According to victim, thereafter they went to Bagasara and stayed there for 20 to 25 days in rented one room where she used to cook with help of cooking materials brought by the respondent and respondent used to go for labour work. Here also respondent established physical relationship with her and used to tell residents staying nearby that they were husband and wife. It was also in evidence of victim herself that she sold her ear ring and other ornaments so that she and the respondent could have money with them.
4.2 In further cross examination taken in camera, the victim admitted that the respondent had been staying in the neighbourhood of her house at Rapar and knew each other and used to meet at each others houses. She admitted that on the date of incident at about 7 in the morning they had met and decided to go away from house by meeting at bus station in the night. She admitted that at no point of time respondent had established physical relationship with her or had intercourse with her against her will and whenever he had intercourse, she did not object in the hope of marriage. The victim was shown in course of her examination letters (Exh. 75 to Exh. 81 produced with list Exh.74) from the custody of respondent, which she admitted to be in her own handwriting, being love letters addressed to respondent willingly and handed over to respondent personally.
4.3 Dr. Khatri (PW-7), the Medical Officer who examined the victim, deposed about height, weight and physical composition of the victim and stated that her sexual organs were in developed state and she was capable for intercourse. He stated that she had 32 teeth and that a person having 32 teeth would be normally of the age more than 16 years. He stated that he did not find it necessary to undertake further tests like radiological test or ossification test regarding age of the victim. PW-7 also stated that the victim was found to have attained her menstrual period at the age of 14 years.
4.4 The fact stated by Medical Officer upon examination of victim that she had attained her first menstrual at about 14 years of age, stood corroborated by admission of victim herself in her deposition that she was in menstrual period for the first time before 3-4 years from the date of incident. The age of the victim is found to be more than 18 years with reference to the evidence on record. A lame attempt was made on part of the prosecution to show that the victim's age was 15 years with reference to school leaving certificate, which was not certified, nor was duly proved as evidence in trial and thus was without any probative value. The prosecution did not examine the mother of victim, whereas father of the victim PW-10 did not throw any light on the aspect of age of the victim, in his deposition at Exh. 17. The medical evidence has been found to be truthful and trustworthy to conclude that the victim's age was 18 years or above.
5. In view of analysis of relevant evidence on record of the trial Court, the only possible conclusion is that the victim who was major in age was a consenting party. She even extended co-operation by her own acts and conduct in various acts of respondent. Both travelled by public transport from place to place together and stayed alone for almost one month before the police caught them in view of complaint filed by victim's uncle. The victim has admitted in her deposition that she never complained to anybody while she was being taken by respondent from Rapar and to other places. The conduct of victim at every stage and in company with respondent was found to be out of her own volition, as invariably emerges from total reading of evidence. It is also germane to notice from the statement of respondent recorded under section 313 of Code of Criminal Procedure, 1973 that according to him, the victim had been insisting to marry him and had threatened him with suicide.
5.1 In light of above evidence, the other evidence such as that of police and investigating officers and the evidence of the panch witnesses, who mainly stated about the procedural steps they undertook in the process of investigation, pales into insignificance and is of no consequence.
6. In view of the above discussion, we find that the findings recorded by the trial Court on the basis of evidence adduced before it are reasonable and plausible. No perversity is seen in appreciation of evidence by the trial Court, leading to the findings and recording of acquittal. The impugned judgment and order dated 10.05.2011 passed by the learned 3rd Additional Sessions Judge, Gandhidham-Kutchh in Sessions Case No.57 of 2007 is, therefore, not liable to be interfered with.
7. As a result, the application for leave to appeal is rejected. Criminal Appeal also stands dismissed summarily.
[D.
H. WAGHELA, J.] [N.
V. ANJARIA, J.] Amit Top