ROHAN KIRITBHAI DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appeals emanate from a common judgment and order, thus both the appeals were heard together.

(2.) The facts of the case which surfaces on record is that on 23/3/2004 between 12.0015.00 hours from near Gandhinagar 'Ch' Circle Bus Stand, both the accused kidnapped the daughter of the complainant by alluring her with a false promise of marriage with accused No.2 and thereby took her away from the legal guardianship of her father. Thereafter, at Gandhinagar Guest House and at different places at Ahmedabad, Vadodara, Surat and Mumbai, without the victim's consent and will, on the pretext of marriage with accused No.2, till 9/4/2004, the accused No.1 and 2 in collaboration with each other, had committed offences under the referred Ss. .

(3.) Learned advocate for the appellant-accused Mr. Vijay Patel in Criminal Appeal No.446 of 2006 submitted that the decision passed by the learned Fast Track Court is contrary to the facts of the case and the evidence on record. It is submitted that the learned Judge has committed an error in holding the appellant/s guilty for the offences even though the evidence on record does not support the case of the prosecution. The learned Judge has also committed an error in interpreting the provisions of Ss. 363 and 366 of IPC and the provision of the Atrocity Act. The learned Judge has not appreciated the fact from the documentary evidence that the victim was an adult on the day of the incident and she had left her father's house on her own volition. Further, the appellant has not induced or lured the victim to leave her father's house and has not at all committed the alleged offence. The learned Judge has not properly appreciated the documentary evidence as regards the date of birth of the victim. It is also submitted that the victim on her own had stayed with accused. It is further submitted that had the victim been induced to leave her father's house under some pressure or temptation, she would have surely made a complaint to that effect during the period of 15 days. It transpires that the victim had not made a phone call to her father or mother or to any of her friends or relatives to make any complaint. It is further submitted that no ingredients exist for invoking the provisions of the Atrocities Act, and the learned Judge has not properly appreciated the depositions of the prosecution witnesses. Learned advocate Mr. Vijay Patel referring to the deposition of the witnesses submitted that the evidence discloses that the victim's brother had beaten her and for that purpose, she had gone to Narmada Canal where she was found by the police and submitted that the allegation are that both the accused took her to Gandhinagar Guest House. The facts of the case as proved during the trial would rather project the situation that the police was aware of the victim staying in the Gandhinagar Guest House. Mr. Patel submitted that the victim girl voluntarily accompanied the accused from Gandhinagar to Ahmedabad and at various places and on her own free will had stayed at various hotels including Gandhinagar Guest House. She had also wanted to watch a movie. The victim girl had all the opportunity to run away or seek help, rather the evidence suggests that she was happy in the company of the accused. Mr. Patel further stated that there was no pre- planned arrangement of any of the accused to make her stay in any of the guest house or hotels. The evidence on record suggests that the appellant was rather broke, he had no money to even support himself during his stay out of his house. Mr. Patel submitted that the evidence of the auto-rickshaw driver also proves the fact that when the police had enquired, the appellant and the victim had introduced themselves as brother and sister and the rickshaw driver had stated about the fact that the victim and the accused were talking in a friendly manner. Referring to the Birth Certificate, School Certificate and entries in the Maternity Hospital and the deposition of the witnesses, advocate Mr. Patel submitted that the age of the victim girl had not been proved. The documents create serious doubt on the genuineness and reliability. Mr. Patel stated that no ossification or medical age determination test was conducted to corroborate the documentary evidence. Mr. Patel further submitted that the prosecution has not proved beyond reasonable doubt that the offence as alleged to be committed was because of the knowledge of the accused of victim belonging to SC/ST community. Except Caste Certificate on record, no evidence has been proved to consider the charge under the Atrocity Act.