ZAKIRBHAI ISHAKBHAI NAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant-orig.accused (hereinafter referred to as 'the appellant') has preferred present appeal under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 27th December 2004 passed by the learned Joint District and Additional Sessions Judge, 4th Fast Track Court, Surat, in Sessions Case No.66 of 2004, whereby the learned trial Judge has held the appellant guilty for the charge offence punishable under Sections 363, 366 and 376 of the Indian Penal Code and ordered the appellant to undergo rigorous imprisonment for three years and a fine of Rs.1000/- for each offence punishable under Sections 363 and 366 of the Indian Penal Code, and in default of making payment of fine, further three months' rigorous imprisonment for each offence. So far as the offence punishable under Section 376 of the Indian Penal Code is concerned, the learned trial Judge has ordered the appellant to undergo rigorous imprisonment for seven years and a fine of Rs.2000/- and in default of making payment of fine, further six months' rigorous imprisonment. The learned trial Judge has ordered to run the said sentences concurrently.

(2.) Shri S.C. Sharma, learned counsel appearing for the appellant, has taken this Court through the basic case of the prosecution and the oral as well as documentary evidence led during the course of trial. He has also taken me through the relevant part of the judgment and order where the learned trial Judge has discussed and evaluated the evidence and has submitted that the finding recorded by the learned trial Judge is erroneous and contrary to the accepted principles of law. One crucial document Ex.34 which could not have been even admitted in evidence by the learned trial Judge has been admitted, and has been read as substantive piece of evidence. The learned trial Judge has also not considered one another crucial aspect that there is no evidence of cogent nature as to the age of the victim girl and on the date of examination by medical officer, she was carrying pregnancy of six months. The ossification test also could not be carried out. So the opinion evidence as to the age of the victim was also not available. When it is possible to infer that this is a case of love affair of a teenager girl with the appellant, who was about 20 to 21 years of age, the learned trial Judge at least could have given benefit of doubt to the appellant herein.

(3.) There is resistance from Ms.D.S. Pandit, learned Additional Public Prosecutor, appearing on behalf of the respondent-State. It is submitted by the learned Additional Public Prosecutor that the learned trial Judge while linking the appellant with the crime has recorded positive findings against the appellant after discussing the arguments made by the defence side in paragraph no.23 of the judgment and order under challenge. When it was proved beyond reasonable doubt that the victim girl was below 16 years of age and she was kidnapped with a particular intention or motive i.e. for sexual exploitation, the conviction recorded by the learned trial Judge under Sections 363, 366 and 376 of the Indian Penal Code cannot be said to be unreasonable or illegal. It was not possible for the prosecution to produce medical evidence in support of the birth certificate produced vide Ex.34 as the victim girl was pregnant when she was taken for medical examination. It was not in the interest of the child in the womb of the victim to have radiation, so the doctors were not able to carry out detailed physical examination of the victim. This grave constrain has been rightly appreciated by the learned trial Judge. The victim girl was pregnant and on account of her conduct, if the Court reaches to a conclusion that she was a consenting party even then the act of the appellant was rape within the meaning of Section 375 of the Indian Penal Code. The alleged consent of a minor, a girl below 16 years of age, has no sanctity in the eye of law. For short, according to learned Additional Public Prosecutor, the judgment and order under challenge cannot be said to be bad in the eye of law. However, in response to the query raised by the Court, she has fairly accepted that the Investigating Officer could have collected the original birth certificate issued by the village panchayat. There is nothing on record to show that the notary who had attested the document Ex.34 was given the original. If the document Ex.34 is seen closely, an impression is also created that this may be the true copy of the xerox copy and plain reading of this document also does not reveal that the birth of the victim was registered with village panchayat in couple of days after the birth of the victim. The language of the certificate indicates that the birth date mentioned in the certificate is one which is mentioned in the application made by the person who had applied for such certificate. For want of any evidence other than Ex.34, whether it was safe for the learned trial Judge to conclude as to the age of the victim on the date of offence, is the question. However, according to learned Additional Public Prosecutor, this question has been addressed properly by the learned trial Judge.