SHITAIPRASAD LALLURAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants who are original accused in Sessions Case No.24 of 1982 on the file of the learned AddI. Sessions Judge, Narol, have preferred this appeal against the judgment and order of conviction and sentence, dated 13.8.1982 passed by the learned AddI. Sessions Judge, Narol, for the offence punishable under Sec.363 read with sec. 114, I.P.C., so far as appellants Nos. 1 and 2 are concerned and for the offence punishable under sec. 376, I.P.C. so far as appellant No.1 is concerned.

(2.) The brief facts of the case, according to the prosecution, are that the complainant Premsingh Dhansing is a native of Nepal and that he stays in the area of Odhav since last 30 to 35 years and is serving in a mill as a watchman; that he has three sons and four daughters and his third child is a girl named Nirmala. According to the prosecution, on 9.6.1981 Nirmala had gone to village Ranip at the place of some relation of the complainant, but she did not return home on the next day and, therefore, the complainant inquired about her and learnt that on 10.6.1981 the appellants had kidnapped Nirmala and she was seen with the appellants by one Kiku Bharvad at Maninagar Railway Station while sitting in the train going for Bombay. The complaint was lodged by Premsingh, father of the prosecutrix on 18.6.1981. According to the prosecution, after two days the two appellants and Nirmala returned to Ahmedabad and that Nirmala was kept at the room of one Ramesh, a friend of appellant No.2. According to the prosecution, Nirmala was threatened not to go out. On 19.6.1991 the police raided the premises of me friend of appellant No.2 situated at Rabari Colony at Odhav and Nirmala and the two appellants were taken into custody by the police. According to the prosecution, appellant No.1 had taken Nirmala to Bombay at the house of the relative of appellant No.1 and she was kept there for two days and thereafter she was brought by both the appellants to Ahmedabad and they stayed at Rabari Colony, Odhav, as stated above and there in the room situated at Rabari Colony, appellant No.1 raped Nirmala against her wish. After the investigation, the police submitted the charge-sheet against the accused for the offences punishable under sections 363, 366 and 376, I.P.C. The case was committed to the Court of Sessions and the learned AddI. Sessions Judge, Narol framed the charge against appellant No.1 for the offences punishable under sections 363, 366 and 376, I.P.C. and so far as appellant No.2 is concerned, the charge was framed for the offences punishable under sections 363, 366 and 376 read with sec. 114, I.P.C. The accused pleaded not guilty to the charge and after recording the evidence, the learned AddI. Sessions Judge, Narol convicted both the accused for the offences punishable under sec. 363, I.P.C. read with sec. 114, I.P.C. and sentence them to suffer simple imprisonment for one year and to pay a fine of Rs.100/- and in default, to suffer Simple Imprisonment for one month. So far as appellant No.1 is concerned, he is further convicted for the offence punishable under sec. 376, I.P.C. and sentenced to suffer two years Simple Imprisonment and fine of Rs.200/- and in default, to suffer Simple Imprisonment for two mouths. So far as appellant No.2 is concerned, he is acquitted of the charge under Sec. 376, I.P.C. The appellants are also acquitted of the offence punishable under sec. 366, I.P.C. The sentences under section 363, I.P.C. and Sec. 376, I.P.C. are ordered to run concurrently, so far as appellant No.1 is concerned.

(3.) Being aggrieved by the said judgment and order of conviction and sentence passed against the appellants, they have preferred this appeal under sec.374, Cri. Procedure Code. Mr. Nitin Amin, learned Advocate or the appellants submitted that the trial Court erred in holding that Nirmala should be of the age of about 15 to 16 years on 10.6.1981. He submitted that the trial Court erred in appreciating the evidence of Shantaben Premsingh, mother of Nirmala and also the evidence of Premsingh, father of the prosecutrixs Nirmala on the point of age of Nirmala. Mr. Amin also contended that the trial Court committed an error in appreciating the evidence of Dr. Hasumatiben Patel and Dr. Gohil while giving finding about the age of Bai Nirmala. He submitted that the trial Court ought to have seen that the prosecution failed to prove the age of the prosecutrixs to be below 18 years. He also contended that looking to the evidence on record, it cannot be said that the prosecutrixs was raped as alleged by the prosecution. Mr. Amin also submitted that the trial Court ought to have come to the conclusion that the prosecution raised to prove that there was a sexual intercourse with Nirmala by appellant No.1 without the consent of Nirmala or that the sexual intercourse was against her will. He also submitted that the trial Court ought to have come to the conclusion that there was no offence proved by the prosecution under sec. 361, I.P.C. and, therefore, the appellants cannot be punished for the offence punishable under sec. 363, I.P.C. He further submitted that the judgment and order of conviction and sentence passed by the trial Court be quashed and set aside and the appellants accused be set at liberty. Mr. K.T. Dave, learned AddI. Public Prosecutor for the State vehemently supported the judgment and order of conviction and sentence passed by the trial Court. Mr. Amin read before me the oral and documentary evidence led by the prosecution before the trial Court.