M.R. Shah, J.@mdash1. Feeling aggrieved and dissatisfied with the impugned judgement and order passed by the learned Additional Sessions Judge, Vadodara in Sessions Case No. 26 of 1991 dated 17/12/1991, by which the learned trial court has acquitted the respondent herein - original accused for the offences punishable under sections 363, 366, 376, 380 and 114 of Indian Penal Code, appellant herein - State has preferred the present appeal.
2. That one Ramanbhai Galbabhai Vaghri, father of the prosecutrix lodged the complaint with City Police Station, Vadodara against the respondent herein - original accused for the offences punishable under sections 363, 366, 376, 380 and 114 of Indian Penal Code. It was alleged in the complaint that he has two daughters and five sons, out of which eldest one Radha (prosecutrix) was studying in 5th standard in Primary School, Vadodara and as she failed, she was not sent to school. It was further alleged that when she was studying in the school, the accused was time and again harassing her. It was further alleged that on 14/8/1990 when there was religious ceremony of Janmashtami in the area, at about 8.30 PM, she went to home alone from the place of religious ceremony, however, thereafter she was not seen and thereafter they started inquiring about her daughter Radha but she was not found out. It was alleged that thereafter, on inquiry it came to know that the accused has eloped with his daughter Radha and kidnapped her, who was minor. It was further alleged that the accused called her to come with him with whatever she is having and therefore, his daughter Radha has run away and took with her Rs. 3000 from the cupboard of his house. It was further alleged that the accused was standing near his house and thereafter both, his daughter Radha and the accused ran away in a Rickshaw and first they stayed in a lodge at Vadodara, where the accused had sexual intercourse with her daughter thrice. It was further alleged that thereafter both of them were moving in Vadodara City and at that time, near Pali Gate area when the maternal uncle and aunt of Radha saw them, they tried to run away, however, the maternal uncle and aunt got Radha, however, the accused run away. That thereafter, Radha was brought to the house and lodged the First Information Report with City Police Station, Vadodara against the accused for the aforesaid offences punishable under sections 363, 366, 376, 380 and 114 of Indian Penal Code.
2.1. After registration of the First Information Report, investigating officer started investigating the First Information Report and recorded statements of the concerned witnesses. He recorded statement of prosecutrix Radha; she was sent to hospital for medical examination, he also recovered clothes of Radha; he also arrested accused on 21/8/1990; he also prepared panchnama of the recovery of the clothes of the accused and sent Radha to SSG Hospital for medical check up; he also prepared panchnama of lodge where the accused and the prosecutrix had stayed; he also recovered incriminating material.
2.2. After investigation and having found prima facie case against the accused, investigating officer filed chargesheet against the accused for the offences punishable under sections 363, 366, 376 and 380 of Indian Penal Code.
2.3. As the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate (First Class), committed the case to the Sessions Court, Vadodara, which was numbered as Sessions Case No. 26 of 1991.
2.4. That the learned Sessions Court framed charge against the accused at Ex. 1 for the offences punishable under sections 363, 366, 376, 380 and 114 of Indian Penal Code. The accused pleaded not guilty and therefore, he came to be tried by the learned Sessions Court for the offences punishable under sections.
2.5. To prove the case against the accused, the prosecution examined as many as 10 following witnesses:--
2.6. The following documentary evidence came to be brought on record by the prosecution:--
2.7. That after closure of the evidence by the prosecution, Further Statement of the accused under section 313 of the Code of Criminal Procedure was recorded. In the Further Statement, the accused has specifically denied having committed any offence as alleged, including having any sexual intercourse with the prosecutrix. He has specifically stated that he has been falsely implicated in the offence. He has stated that the prosecutrix had illicit relation with one another boy named Salim and therefore, at the instance of said Salim, false First Information Report has been lodged against him.
2.8. That on appreciation of evidence and disbelieving the Birth Certificate of the prosecutrix issued by the competent authority - Vadodara Municipal Corporation produced at Ex. 13 in which date of birth of the prosecutrix was mentioned as 16/9/1976 and thereafter having observed that the prosecution has failed to prove beyond reasonable doubt the age of the prosecutrix i.e. less than 18 years or less than 13 to 14 years, and having observed that the prosecutrix had gone with the accused with her consent and voluntarily, by the impugned judgement and order the learned trial court by giving benefit of doubt, has acquitted the accused.
2.9. Feeling aggrieved and dissatisfied with the impugned judgement and order of acquittal passed by the learned trial court, the State has preferred the present appeal.
3. Mr. Himanshu Patel, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the learned trial court has committed a grave error in acquitting the accused by giving benefit of doubt.
3.1. Mr. Himanshu Patel, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that the learned trial court has materially erred in holding that the prosecution has failed to prove the age of the prosecutrix i.e. whether the prosecutrix was less than 18 years or less than 13 to 14 years.
3.2. Mr. Himanshu Patel, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that the learned trial court has materially erred in disbelieving and/or discarding Birth Certificate of the prosecutrix issued by the competent authority - Vadodara Municipal Corporation, produced at Ex. 13. It is submitted that the reasonings given by the learned trial court while discarding the Birth Certificate of the prosecutrix Ex. 13 are not sustainable at all. It is submitted that the reasonings given by the learned trial court while discarding the Birth Certificate of the prosecutrix are perverse. It is submitted that the Birth Certificate of the prosecutrix issued by the competent authority - Ex. 13, the age of the prosecutrix was 14 years i.e. less than 15 years and therefore, assuming that there was consent of the prosecutrix and/or the accused had sexual intercourse with the prosecutrix with the consent of the prosecutrix, the prosecutrix being minor, aged 14 years, such a consent is irrelevant and therefore, the learned trial court ought to have convicted the accused for the offence punishable under section 376 of Indian Penal Code.
3.3. Mr. Himanshu Patel, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that even in the Further Statement recorded under section 313 of the Code of Criminal Procedure, the accused gave false explanation, and came out with a false case. It is submitted that in the Further Statement the accused has specifically denied having any sexual intercourse with the prosecutrix. It is submitted that, however, the accused and the prosecutrix gave history before the Doctor wherein it was their case that they had sexual intercourse with consent. It is submitted that, therefore, the prosecution has been successful in proving the case that both, the accused and prosecutrix had sexual intercourse in the night of 14/8/1990 in the lodge at Vadodara. It is further submitted that even the owner of the lodge, who has been examined at Ex. 17, has identified the accused in the Court and he has stated that the accused was with the prosecutrix in his lodge.
3.4. Mr. Himanshu Patel, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that as such there was no reason to disbelieve the Birth Certificate of the prosecutrix issued by the Vadodara Municipal Corporation. It is submitted that merely because the birth was registered after a period of eight years from the date of the birth of the prosecutrix, on that ground alone, Birth Certificate could not have been discarded and/or disbelieved. It is submitted that as such the incident took place on 14/8/1990 and the Birth Certificate produced at Ex. 13, the birth was registered prior to the date of incident. It is submitted that therefore, there was no reason to disbelieve or discard the said Birth Certificate, which was as such issued by the competent authority - Vadodara Municipal Corporation.
3.5. Mr. Himanshu Patel, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that even the reasoning given by the learned trial court while discarding and/or disbelieving the Birth Certificate Ex. 13 that, in the said Birth Certificate, register number has not been mentioned and therefore, the birth certificate creates doubt, is unsustainable and such a finding is perverse.
3.6. Mr. Himanshu Patel, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that if the learned trial court had believed the Birth Certificate of the prosecutrix Ex. 13 in which the date of the birth is mentioned as 16/9/1976, in that case, the age of the prosecutrix was 14 years and therefore, the learned trial court ought to have convicted the accused for the offence punishable under section 376 of Indian Penal Code.
Making above submissions and relying upon above decision, it is required to allow the present appeal.
4. Present appeal is opposed by Mr. P.P. Majmudar, learned advocate appearing on behalf of the respondent herein - original accused. It is submitted that in the facts and circumstances of the case, the learned trial court has not committed any error in acquitting the accused. It is submitted that by giving cogent reasons, the learned trial court has discarded and/or disbelieved the Birth Certificate Ex. 13. It is submitted that therefore, the learned trial court has rightly observed and held that the prosecution has failed to prove the date of birth of the prosecutrix. It is submitted that it is by holding so, the learned trial court has rightly acquitted the accused by giving benefits of doubt.
4.1. Mr. P.P. Majmudar, learned advocate appearing on behalf of the respondent herein - original accused has further submitted that as such it was a case of consent by the prosecutrix and the prosecutrix had run away with the original accused voluntarily and therefore, the learned trial court has rightly acquitted the accused.
4.2. Mr. P.P. Majmudar, learned advocate appearing on behalf of the original accused has further submitted that as such this appeal is against the order of acquittal. It is submitted that therefore, when the learned trial court by giving cogent reasons has acquitted the accused by giving benefit of doubt, the same is not required to be interfered with in exercise of appellate jurisdiction.
4.3. Mr. P.P. Majmudar, learned advocate appearing on behalf of the respondent herein - original accused has further submitted that as per the catena of decisions of the Hon''ble Supreme Court and this Court even if two views are plausible and the learned trial court has taken one plausible view and even if the appellate court finds that second view is plausible, in that case also, the appellate court is not justified in reversing the order of acquittal. In support of his above submissions, he has heavily relied upon the following decisions:--
"(i) , (2007) 4 SCC 415 (Chandrappa and Others v. State of Karnataka);
(ii) , JT 2013 (2) SC 505 (Atmaram S/o Raysingh Rathod v. State of Maharashtra);
(iii) , AIR 2014 SC 1782 (Mangat Ram v. State of Haryana) and
(iv) , 2013 (2) GLH 604 (Indrajit Sureshprasad Bind and Others v. State of Gujarat)."
4.4. Mr. P.P. Majmudar, learned advocate appearing on behalf of the respondent herein - original accused has further submitted that in the present case deposition/evidence of the prosecutrix is wholly unreliable. It is submitted that as it was a case of consent. It is further submitted that in the present case the register of Birth and Death on the basis of which the Birth Certificate is issued, has not come on record. It is submitted that officer from the Vadodara Municipal Corporation who has issued the Birth Certificate, has not been examined to prove the Birth Date and hence the Birth Certificate is not proved. It is submitted that therefore, considering the fact that the birth was registered after a period of eight years from the date of birth of the prosecutrix and there was no explanation coming forth for late registration of the birth of the prosecutrix, the learned trial court has rightly discarded and/or disbelieved the Birth Certificate Ex. 13.
4.5. Mr. P.P. Majmudar, learned advocate appearing on behalf of the respondent herein - original accused has further submitted that therefore, considering the fact that the birth was registered after a period of eight years from the date of birth and there was no explanation from forthcoming for late registration of the birth and even the register of Birth and Death on the basis of which the birth Certificate has been issued, has not placed on record and no officer from the office of the Vadodara Municipal corporation, who issued the Birth certificate, has been examined, the learned trial court has rightly discarded and/or believed the Birth Certificate of the prosecutrix Ex. 13.
4.6. Mr. P.P. Majmudar, learned advocate appearing on behalf of the respondent herein - original accused has further submitted that in the present case, neither there was any ossification test or any scientific test conducted to ascertain the age of the prosecutrix, it is submitted that therefore, in absence of any ossification test or any scientific test to prove the age of the prosecutrix, the learned trial court has rightly acquitted the accused.
4.7. In support of his above submission, Mr. P.P. Majmudar, learned advocate appearing on behalf of the respondent herein - original accused has relied upon the following decisions of the Hon''ble Supreme Court:--
"(1) 2015 AIR SCW 1711 (Md. Ali @ Guddu v. State of U.P.);
(2) , 2010 (1) GLH 346 (Sunil v. State of Haryana) &
(3) , (2011) 2 SCC 385 (Alamelu and another v. State)."
4.8. Mr. P.P. Majmudar, learned advocate appearing on behalf of the respondent herein - original accused has further submitted that in the facts and circumstances of the case, the Birth Certificate of the prosecutrix has not been proved by adducing evidence and the learned trial court has not believed that the age of the prosecutrix is below 16 years and therefore, when the learned trial court has, after specifically observing that the prosecution has failed to prove the age of the prosecutrix, and by giving cogent reasons, when the learned trial court has acquitted the respondent herein - original accused on appreciation of evidence, the impugned judgement and order of acquittal is not required to be interfered with by this Court in appellate jurisdiction.
Making above submissions and relying upon above decisions, it is requested to dismiss the present appeal.
5. Heard the learned advocates appearing on behalf of the respective parties at length.
5.1. We have gone through and considered the impugned judgement and order of acquittal passed by the learned trial court, by which the learned trial court has acquitted the original accused for the offences punishable under sections 363, 366, 376, 380 and 114 of Indian Penal Code. We have re-appreciated the entire evidence on record and also the findings recorded by the learned trial court while acquitting the original accused.
5.2. On re-appreciating the entire evidence on record, it emerges that as such the victim went with the accused with her consent and she ran away with the accused on her own and in fact, the victim and the accused moved one place to another place and at no point of time either she resisted and/or shorted for help. It has also come on record that both, the accused as well as victim stayed in a lodge at Vadodara and they had sexual intercourse, however, at no point of time she resisted and/or shouted for the help. While they were moving near the Pani-Gate area of Vadodara, maternal aunt of the victim saw both, the accused as well as the victim and that is how both of them while running away were apprehended. Therefore, as such it is a case of consent.
5.3. However, it was the case of the prosecution that as the victim was less than 15 years, her consent was irrelevant and therefore, the learned trial court ought to have convicted the original accused for the offence under section 376 of Indian Penal Code.
5.4. According to the prosecution, the date of birth of the victim was 16/9/1976 as per the birth certificate issued by the Municipal Corporation produced at Ex. 13. However, it is required to be noted that even as per the said Certificate registration of the birth was made on 24/1/1985 i.e. after a period of 8 (eight) years from the date of birth. Even in the said certificate also neither any registration number has been mentioned and/or any register number has been mentioned. To prove the age of the victim mentioned in the birth certificate, the prosecution has not led any further evidence by examining any officer from the municipal authority. Therefore, in the facts and circumstances of the case, it cannot be said that the prosecution has proved the age of the victim by leading cogent evidence, more particularly the date of birth of the victim i.e. 16/9/1976. No School Leaving Certificate has been produced on record. Under the circumstances, the prosecution has miserably failed to prove that at the time of commission of the offence/incident, the victim was less than 15 years. Under the circumstances and as observed hereinabove, the victim ran away with the accused on her own and the victim and the accused moved together from one place to another place and had sexual intercourse and at no point of time, the victim resisted. However, it appears that subsequently the victim has changed the story and deposed that the accused had sexual intercourse with her against her wish and will. Considering the overall facts and circumstances of the case, it will not be safe to convict the original accused solely relying upon the deposition of the victim, as the deposition of the victim is not reliable and trustworthy. Considering the facts and circumstances of the case, when the learned trial court has acquitted the original accused, the same is not required to be interfered with by this Court.
5.5. It is required to be noted that this is an appeal against acquittal and unless and until it is found that the findings recorded by the learned trial court are perverse and/or contrary to the evidence on record, which has resulted into miscarriage of justice, interference of the appellate court against the order of acquittal is not called for.
5.6. In the present case, as observed hereinabove, the findings recorded by the learned trial court are on appreciation of evidence, which cannot be said to be perverse and/or contrary to the evidence on record. Under the circumstances, interference of this Court against the impugned judgement and order of acquittal is not called for.
6. In view of the above and for the reasons stated above, present appeal fails and the same deserves to be dismissed and is accordingly dismissed. The impugned judgement and order passed by the learned Additional Sessions Judge, Vadodara in Sessions Case No. 26 of 1991 dated 17/12/1991 acquitting the original accused - respondent herein acquitting for the offences punishable under sections 363, 366, 376, 380 and 114 of Indian Penal Code is hereby confirmed.
