SUNIL JETHUBHA MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD Shri Vaibhav Sheth, learned counsel appearing on behalf of Shri G. D. Bhatt for the appellant and Shri P. D. Bhate, learned Additional Public Prosecutor, appearing on behalf of the respondent-State.

(2.) THE appellant-orig. convict (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 dated 15th march 2007 passed by the learned presiding Officer, Fast Track Court, porbandar, in Sessions Case No. 10 of 2003, whereby the learned Trial Judge has held the appellant guilty for the charge of offence punishable under Section 363 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 03 (three) years and a fine of Rs. 3000/-, and in default of making payment fine, the appellant is ordered to undergo simple imprisonment for 03 (three) months. However, the learned Trial Judge has acquitted the appellant from the charge offences punishable under Sections 366 and 376 of the Indian Penal Code, mainly keeping in mind the deposition of the victim girl and other aspects available on record, including the medical evidence led by the prosecution.

(3.) SHRI Vaibhav Sheth, learned counsel appearing for the appellant, has taken me through the main grounds of challenge mentioned in the memo of the appeal and so also the reasons assigned by the learned trial Judge while recording the finding of guilt of offence punishable under Section 363 of the Indian Penal Code. He has also taken me through the oral as well as documentary evidence, including the complaint dated 22nd July 2002 filed by father of minor victim girl namely bavanbhai Parbatbhai. It is submitted that the learned Trial Judge has mainly relied upon the evidence of the victim girl examined vide Ex. 29 and other evidence produced as to the age of the victim girl. According to the learned Trial Judge, there was a convincing evidence to show that on the date of incident, i. e. 26th July 2002, the victim girl was below 18 years of age, and when it is the say of the victim girl that she had gone with the appellant and had stayed with him at various places and had also enjoyed sex with the appellant, the appellant can be linked with the crime of offence punishable under Section 366 of the Indian Penal Code at least. According to Shri Vaibhav Sheth, learned counsel appearing for the appellant, this inference drawn by the learned Trial Judge is nothing but a conjecture or surmise because the prosecution was under obligation to prove the elements of either threat or enticement and so also the word "taking" used in section 361 of the Indian Penal Code. Section 361 of the Indian Penal Code defines 'kidnapping' which is made punishable under Section 363 of the Indian penal Code. The learned Trial Judge has ignored various aspects including the infirmities which are apparent in the deposition of the victim girl. This witness on plain reading of the judgment is found to be a self-condemned witness and when she herself has said that she had left her village alone and at that time the appellant was not with her, the appellant ought not to have been linked with the crime punishable under section 363 of the Indian Penal Code. It is in evidence that on the date of incident, the victim girl was aged 16 years 11 months and 13 days. Meaning thereby, she was of about 17 years of age. It is also in evidence that prior to her leaving her parental home and the village in which she was residing, her marriage was performed with one mayabhai, whose name has been referred to in the FIR given by the father of the victim girl. The crucial question is not whether the victim could have been said under the guardianship of the complainant or any of the parents or not. Though the word "engagement" has been used, which is popularly known as "sagai" in Gujarati vernacular language, but the evidence shows that the victim girl was the wife of said mayabhai and this Mayabhai has neither filed any complaint nor has been examined as prosecution witness. It is in evidence that before the marriage with Mayabhai, the victim girl had some liking for the appellant and both of them were meeting each other at certain places and so a swatch (sic) was also kept on the movement of the victim girl by her parents. All these things are part of record. So in this situation, keeping in mind the ratio of the decision in the case of S. Varadarajan v. State of Madras, reported in AIR 1965 SC 942, the learned Trial judge ought to have given benefit of doubt to the appellant.