ANOPKUNVAR KANTAKUNVAR HIJDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this appeal the five appellants who are respectively accused Nos. 1 3 to 6 of Sessions Case No. 105 of 1983 on the file of the learned Additional Sessions Judge have challenged the order of conviction and sentence passed against them by the learned trial Judge. We shall refer to the present five appellants as original accused Nos. 1 and 3 to 6 respectively for the sake of convenience in the later part of this judgment. Accused No. 1 has been convicted under sec. 363 I.P.C. and has been sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000.00 and in default rigorous imprisonment for three months. He is also convicted for an offence under sec. 326 read with sec. 114 I.P.C. and was been awarded sentence of rigorous imprisonment for five years and also to pay a fine of Rs. 1000.00; in default rigorous imprisonment for three months on that count. The substantive sentences are ordered to run concurrently. So far as original accused Nos. 3 4 and 6 are concerned they have been convicted under sec. 326 read with sec. 114 I.P.C. and each of them is sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000.00 in default rigorous imprisonment for three months while so far as accused No. 5 is concerned she has been convicted under sec. 326 I.P.C. and is ordered to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000.00 in default rigorous imprisonment for three months. By the very same order the learned Additional Sessions Judge has however been pleased to acquit accused Nos. 1 and 3 to 6 of the offence under sec. 363 A and sec. 506 I.P.C. and has also been pleased to acquit accused No. 2 who is not before us of the charges levelled against him. As we are not concerned any more with accused No. 2 we do not dilate on the prosecution case against accused No. 2 any further.

(2.) The prosecution case against the concerned accused is highlighted by Hanif Musa Adam Patel. The complaint which he filed against the concerned accused in Chhota-Udepur Police Station on 21-7-1982 contained the following allegations against the concerned accused: 4

(3.) It is now time to have a bird-eye view of the prosecution evidence led at the trial in support of the aforesaid charges against the concerned accused. At. Ex 15 is produced the School Leaving Certificate of the complainant Patel Mohamed Hanif Musabhai Adambhai. It shows that the complainant had left the school at Chhota-Udepur which was Taluka Shala No. 1 run by the District Panchayat Education Committee. Baroda. The certificate mentions the full name of the student as Patel Mohmed Hanif Musabhai Adambhai and is shown to be Musalman Patel. His place of birth is Chhota-Udepur in Chhota-Udepur Taluka of Baroda District and his birth date along with the year of birth is mentioned to be 1-6-1967 both in figures as well as in words. He is said to have entered the School on 21-6-1979 and to have left it on 31-12-1980 when he was in 5th Standard. This School Leaving Certificate Ex. 15 was admitted on the record of the case by consent of both the sides and Mr. Barot rightly did not challenge the same. As per the Certificate the age of the complainant stands well-ascertained on the date of the incident. As the charge which is based on the relevant averments in the complaint shows about ten months prior to The complaint which was dated 21-7-1982 the first offence of kidnapping and Thereafter the offence of emasculation came to be committed against the complainant. By that lime admittedly the complainant had completed only 15 years and few month of his existence on this planet. Thus he was admittedly a minor boy below 16 years of age. This aspect of the prosecution case stands well established on admitted position between the parties as to the birth date of the complainant. It is in this background that we have to find out as to how this minor boy below 16 years of age was criminally :dealt with by the concerned accused as alleged by the prosecution. .... .... .... ....