ZALA RANUBHA NANUBHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The Criminal Appeal is filed by the appellant - accused under Section 374 of the Cr.P.C. Against the judgment and order, dated 5.8.2016, passed by the learned Special Judge (POCSO), Mehsana in Special (POCSO) Case No. 81 of 2014.

(2.) The case of prosecution, in brief, is that on 5.9.2017, the victim (prosecutrix) without permission and consent of the parents, went away with the appellant - accused, who lured her and thereby, by giving false promise of marriage, took the victim in the evening hours at around 7.30 p.m. to various places including temple and committed rape, established physical relationship against her will and thereby, has committed an offence punishable under Sections 363, 366 and 376 of the IPC read with Sections 4 and 8 of the Protection of Children from Sexual Offences Act,2012 (POCSO Act). The case of the prosecution is that at the relevant point of time, the victim was below the age of 18 years and at the time when offence is said to have been committed, he was aged about 17 years and 11 months. Resultantly, a complaint was lodged at Bahucharaji Police Station being IC. R.No.57 of 2014.

(3.) Mr. P.V. Patadiya, learned advocate for the appellant accused has contended that the judgment and order passed by the trial court is only perverse to the record, but reflects clear nonapplication of mind while exercising the jurisdiction. It has been contended by learned advocate that on her own, the prosecutrix has eloped with the present appellant accused and all throughout from 5.9.2014 to 10.9.2014, she, on her own, remained with the appellant accused and established the physical relationship. Learned advocate has further contended that testimony of prosecutrix is credible and there are material contradictions reflecting which cannot be relied upon. In addition thereto, Mr.Patadiya has submitted that apart from the testimony of the prosecutrix, even the ocular version is supported by medical evidence. The physical examination of the prosecutrix is revealing the fact that there were no marks of injuries nor any forceful act. Had there been so, the medical opinion might have been different and, therefore, in the absence of any consistency in ocular and medical evidence, it is safe to convict the present appellant. Mr. Patadiya, learned advocate for the appellant has further contended that ingredients of an offence which are alleged against the present appellant are established by the prosecution beyond reasonable doubt if the evidence on record is perused in as it is form and, therefore, raising of an inference and conjectures by the trial court are sound and, therefore, on the basis of such exercise of jurisdiction, the order of conviction may be passed. Learned advocate has further contended that even apart from medical evidence also, the age of the prosecutrix is clearly establishing that she was minor at the relevant point of time. The physical examination of the prosecutrix is clearly revealing that her age might be beyond 18 years. Even the radiological report is also indicating that her age is beyond 18 years and, therefore, simply because one birth date entry which has been recorded on the basis of previous record, it cannot be said that prosecution has established the age of the victim beyond reasonable doubt. It is settled law, as contended by learned advocate for the appellant, that if the medical evidence is completely rulling out the probability of ocular evidence, a preference should be given to a medical evidence which is clearly visible on the record of the case. Learned advocate has further contended that examination of Medical Officer and the material attached with it, is indicating that she on her own has left and eloped with the appellant accused and the accused has committed any crime. Learned advocate has further contended that at one point of time, the victim is indicating that for the purpose of executing the marriage, the appellant accused took her to a temple and kept there from 5.9.2014 to 10.9.2014 and committed a rape on her, whereas the history which has been given by herself before the doctor and while physically examining her, she has stated that for the purpose of offering prayer, the accused took her away. Therefore, there appears to be only a consistent version of prosecutrix, but her version is at complete variance to the other material on record and, therefore, in such a situation, it is safe to pass an order of conviction against the appellant accused. Mr. Patadiya, learned advocate has further contended that there are series of decisions in which it has been held that if there is a stiff probability of doubt on the age of prosecutrix, then the benefit of doubt must be extended to the appellant accused and, therefore, for that purpose and on the issues of other contentions, Mr. Patadiya, learned advocate has relied upon following decisions which this Court will deal with at an appropriate stage in the present judgment