KALSING BABUBHAI KOLI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellants-orig. accused nos. 1 and 5 (hereinafter referred to as 'the appellants') have preferred the present appeal under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 24th January 1995, passed by the learned Additional Sessions Judge, Panchmahals at Godhra, in Sessions Case No. 192 of 1993, whereby the learned trial Judge has held the appellants guilty for the charge of offences punishable under Sections 363 and 366 read with Section 114 of the Indian Penal Code and sentenced them to undergo simple imprisonment for three years and a fine of Rs. 250/-, in default to undergo simple imprisonment for one month for each of the offences punishable under Sections 363 and 366 read with Section 114 of the Indian Penal Code. The learned trial Judge has ordered the sentences to run concurrently.

(2.) SHRI J. M. Buddhbhatti, learned counsel appearing with Ms. Nayana Panchal for the appellants, has taken me through the basic case of the prosecution, charge framed and the and the evidence led during the course of trial. According to the case of prosecution, the minor victim girl Ramila (hereinafter referred to as 'the victim girl') was residing at Dhanpur under the guardianship of her uncle Jvala Masur. The said uncle Jvala Masur was also the guardian of minor brother of the victim namely Bhupat. It is alleged that the victim girl was kidnapped by the orig. accused persons and she was forcibly asked to marry appellant no. 1, who is the brother of brother-in-law (sister's husband) of the victim girl. Ultimately, the marriage of the victim girl was performed with the appellant no. 1 and the same was registered with the Registrar of Marriages. The allegation is that the age of the minor is shown before the Registrar to be of 20 years, but the birth date of the victim is 26th June 1977. So on the date of offence, she was less than 18 years of age. So it is alleged that the act of taking away the minor victim from the guardianship of her uncle was an offending act under Section 363 of the Indian Penal Code. The intention of the accused persons was to see that the minor victim girl marries the appellant no. 1 herein and she could be exploited sexually against her wish and will.

(3.) ON careful reading of paragraph no. 16 of the judgment and order of conviction and sentence under challenge, it is clear that the evaluation of the evidence of the victim girl and the prosecution witnesses is contrary to law. The discussion as to the evidence and the details of marriage registration certificate and the procedure which was followed by the said uncle i. e. complainant, in getting the Search Warrant issued would not add any strength to the case of the prosecution. The kidnapping is an offence against the lawful guardianship and the offence punishable under Section 366 is an offence against the individual person. The learned trial Judge ought not to have given any weightage to the defence adopted by the accused persons because the prosecution was under obligation to establish its case beyond reasonable doubt. The appellant no. 2 was not a stranger to the victim girl. Undisuptedly, appellant no. 2 is the real brother-in-law of the victim girl. Lila-real sister of the victim girl was of the view that her sister i. e. victim girl, should marry with her younger brother-in-law i. e. appellant no. 1. It is in evidence that because of the social ties and as the victim girl and appellant no. 1 were working together, the victim girl had some inclination to marry the appellant no. 1. This fact has been brought by the defence-side by proving the contradictions. It appears that the version of the victim before the Court was an improved version and contrary to the story unfolded by her before the Police at an initial stage. In such a situation, there was no scope to believe the victim girl on merit. In the same manner, the deposition of the uncle of the victim girl also would not help the complainant. Ultimately, when the uncle was not the lawful guardian of the victim girl since Lila-real sister of the victim girl, undisputedly who was not a minor, was there to look after the interest of her minor brother and sister; whether the complainant can claim that he was a lawful guardian, was also a question before the learned trial Judge. The learned trial Judge, according to Shri Buddhabhatti, learned counsel appearing for the appellants, has ignored many sensitive and relevant aspects while linking the accused with the crime. For short, according to Shri Buddhbhatti, the conviction recorded by the learned trial Judge is absolutely contrary to law and facts which were placed before the learned trial Judge.