HADIYABHAI DITABHAI MOHNIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant came to be tried by Sessions Court, Baroda, in Sessions Case No. 78 of 1999, for the offences punishable under Sections 363, 366, 376, 302 and 201 of the Indian Penal Code. The case against him was that he kidnapped minor-Sharadaben under the pretext of taking her to her maternal uncle's place from her house at Gayatri, behind s D Cabin, Bajwa, Vadodara, on 13th October, 1998, at about 15.00 houRs. The appellant was seen taking away Sharada by a number of witnesses. Thereafter, the appellant and Sharada both disappeared. Parents of Sharada, on returning from their work place, found that Sharada was not at home and did not return till evening. They started looking for her. Having lost patience, they telephoned mother of first informant, Maniabhai, at Dahod saying that the accused had taken away Sharadaben and they are not traceable. She, therefore, looked for the accused and the minior at Dahod, but, as she did not find them, she also informed police just as Maniabhai informed Jawaharnagar Police. On 29th October, 1998, Champakbhai Mohanbhai Patel went to his field and smelt some foul smell coming from the grass that had grown near the hedge of his field and, on examining the place, he found dead body of a girl with maggots. There were bangles in her hand and the dead body was in a badly degenerated form. Only what was left were bones or skeleton. There were three other persons with him at that time. All of them went to Jerod Police and informed about the same. In the meantime, Jawaharnagar Police came and the place was seen. What was found were bones, pieces of the frock worn by the deceased, pieces of bangles worn by the deceased and the undergarment of the deceased. The police sent the bones to Forensic Science Laboratory (FSL) for determination of age and sex of the person whose bones were found. It was opined by the FSL that it was of a person aged about 11 to 14 years, but sex could be determined. The appellant came to be arrested from Dahod and was interrogated. On his disclosure, he was taken to the place of incident where a Panchnama was drawn, but, before that, the police was taken by him to various places, on the previous day. On the previous day, at the end of the day, the police and the appellant halted at Yuvraj Hotel, Ranoli, where the appellant attempted to commit suicide, for which an offence was registered against him under Section 309 of the I. P. C. and then he made disclosure, on the basis of which a Panchnama of place was drawn. Ultimately, charge sheet came to be filed in the Court of learned Judicial Magistrate, First Class, who, in turn, committed the case to the Court of Sessions.

(2.) We have heard learned Advocate, Mr. Supehia, for the appellant and learned Additional Public Prosecutor, Ms. Patel, for the State.

(3.) Mr. Supehia submitted that the Trial Court committed an error in convicting the appellant for the offences punishable under Sections 366, 302 and 201 of I. P. C. He submitted that the evidence, which is recorded, is only of witnesses who have seen the deceased and the appellant leaving together on a bicycle. There is no evidence to show that the kidnapping was done to force the deceased to any illicit intercourse or to expose her to likelihood of such illicit intercourse. Mr. Supehia submitted that even for murder, there is no evidence. There is no evidence to conclusively prove that the pieces of dead body, which were found, were that of the deceased-Sharada and, therefore, conviction for her murder is ill-founded. The evidence led by the prosecution is inconsistent and faulty. Witness-Champaklal has seen the dead body with maggots, whereas the Panchnama of the place of incident wherefrom pieces of dead body were found does not speak of any maggots. The evidence regarding leaving of bicycle and recovery thereof is also doubtful. The bicycle is not shown to any of the witnesses, but claimed to have seen the deceased being taken away by the accused on a bicycle. He, therefore, submitted that, at the most, the Trial Court could have convicted the appellant only for an offence punishable under Section 363 of I.P.C. He, therefore, submitted that convictions under Sections 366, 302 and 201 by the Trial Court may be set aside by partly allowing the appeal.