Mr. B.N. Karia, J.(Oral) - By preferring this Criminal Appeal under Section 378 (1) (3) of the Code of Criminal Procedure, 1973, the State of Gujarat is in appeal against the order of acquittal dated 29th September 2005 passed by the learned Presiding Officer, 4th Fast Track Court, Surat in Sessions Case No. 138 of 2002 made below Exh. 115.
2. Brief facts of the prosecution case are that, the complainant, origin of village Navda, Taluka Dhanduka, District Ahmedabad, when was residing at Katargam, local area of Surat City along with her husband and other family members, at that time, her younger sister aged around 15-16 years was also working in a Diamond factory, where she was employed. The complainant came to know about ill motive of the accused no. 1, and therefore, she withdrew the victim from that unit and sent her in another unit. That, on 25th March 2000, the victim went to unit for work and came back at home for lunch at 12 noon, and thereafter, at about 2 O''Clock, she went back to the unit for work. However, at about 2:45 O''Clock, the owner of the unit where the victim was employed, made a call to the complainant informing about absence of victim from work after lunch hour. Upon receiving the message, the complainant went to the Unit and made search of the victim in and around the area, but she could not trace her. Therefore, she understood that the accused no. 1 with a view to fulfil his ill intention and with a view to solemnize marriage with victim had eloped with her. Thereafter, the complainant gave a complaint to Katargam Police Station against the accused on 28th March 2000 along with a zexox copy of birth certificate of the victim. On receipt of the complaint, the investigating officer went at different places in search of the victim girl, and in the meantime, recorded statements of concerned witnesses. That, thereafter, the accused no. 1 and victim girl were found from Amreli District. They were consequently sent for medical check up at Surat. It is further alleged in the complaint that the accused no. 2 helped accused no. 1 in fleeing away with the victim. It is also stated that accused no. 3 had provided information to accused no.1 and accused nos. 4 & 5 remained present at the time of their marriage. That, the accused no. 6 had solemnized their marriage ceremony and that the accused no. 7 helped accused no. 1 to run away with the victim. That, the accused no. 8, who is an advocate by profession, knowing fully well that the victim was minor at the time of marriage, had solemnized her marriage with the accused no.1 so also managed to register it by making frivolous documents. On these facts, further investigation was carried out and on completion of the same, accused persons were charge-sheeted to stand trial for the offence punishable under Sections 363, 366, 376, 465, 467, 468, 470, 471, 477 [a], 341, 342 & 114 of the Indian Penal Code read with Sections 4 & 5 of the Prohibition of Child Marriage Act, 2006.
3. At trial, the accused pleaded not guilty and claimed to be tried. Therefore, the prosecution led evidence and on conclusion of the trial, the learned Presiding Officer, 4th Fast Track Court, Surat in Sessions Case No. 138 of 2002 acquitted all the accused by an Order dated 29th September 2005; which is impugned herein.
4. Heard learned APP Mr. Rutvij Oza appearing for the appellant-State; learned advocate Mr. Manoj N. Popat for respondent nos. 1 to 4; Mr. Tulsi R. Savani, learned advocate for respondents no. 5, 7 & 8 and Mr. Nishant Lalakiya, learned advocate for the respondent no. 6.
5. It was submitted by learned APP Mr. Rutvij Oza for the prosecution/appellant that by producing sufficient documents, examining the witnesses from the prosecution side, it was clearly proved that minor girl whose birth date being 28th June 1984 as per School Leaving Certificate No. 92, was kidnapped by the accused no. 1 from the lawful guardianship without the consent of such guardians. The prosecution has also proved that the accused no. 1 having kidnapped the minor girl with an intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry him against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse. However, A1 was knowing that victim girl was minor, he had developed sexual relationship with the victim girl by force. It is further argued that accused no. 6 has abetted in getting marriage of minor with the accused no. 1 by performing marriage ceremony which was against the provisions of the Prohibition of Child Marriage Act, 2006. That, A8 is a practicing advocate, however, false advice was given by him for marriage of the A1 for registration of marriage, false documents were created by him, and therefore, offence under Section 467, 468, 465, 470, 471 & 477 [a] IPC was proved by the prosecution. That A2 to A5 are also abettors and were present in the marriage ceremony of A1, though they were under knowledge that the victim girl was minor. That, none of them had informed the Police. That, as per the Radiologist report, the victim was minor and as per the medical evidence, rape was committed with the victim girl. Hence, the prosecution has successfully proved the charges levelled against all the accused and hence, the learned trial Judge has committed a grave error in not accepting the evidence of the prosecution witnesses and acquitted them from the charges. Hence, it was requested by the learned APP to quash and set-aside the impugned judgment and order dated 29th September 2005 passed by the learned trial Judge in Sessions Case No. 138 of 2002 acquitting all the respondent by allowing this Appeal.
6. Per contra, learned advocate Mr. Tulsi R. Savani appearing for the respondents no. 5, 7 & 8 submitted that the learned trial Judge has rightly appreciated the evidence of the prosecution and come to the conclusion of acquittal from the offence. That, no mistake is committed by the learned trial Judge in granting acquittal to the accused. The prosecution has clearly failed to establish its case beyond reasonable doubt against the accused of kidnapping of minor girl from the legal guardianship of her sister and for the offence punishable under Sections 467, 468, 465, 470, 471, 477 [a] IPC. That, the complaint itself is delayed by three days and no explanation for such delay has come forth. That, there are multiple contradictions in the complaint and deposition of complainant, as the complainant has no idea or personal knowledge of the incident. That, the victim girl herself has instigated A1 to elope with her and thereby to enter into marriage life. That, no cogent evidence of the birth date of the victim is produced by the prosecution as well as the medical evidence. She has never tried to get any assistance from any one or to even inform the Police, if any force was committed on her. That the birth date shown in the school leaving certificate cannot be said to be a reliable evidence to prove the exact birth date of the victim girl. That, no evidence is produced by the prosecution against A5, A7 & A8 in abducting or abetting the A1 and the victim girl for executing any frivolous document. That deposition of the victim girl is also contrary to her police statement. That no witness were examined by the prosecution proving A5 & A7 having abetted the A1 in kidnapping the victim girl. That A7 was never present in the marriage ceremony of A1, and hence, it was requested by him to dismiss the Appeal and thereby confirm the order passed by the learned trial Judge qua A5, A7 & A8.
7. Learned advocate Mr. Nishant Lalakiya appearing for the respondents no. 6 broadly adopted the arguments advanced for and on behalf of A5, A7 & A8 by learned advocate Mr. Tulsi R. Savani. He further urged that there is no evidence against A6 that he was present in the marriage ceremony of the victim with A1. That, no marriage ceremony was performed by A6 as a Priest. Whatever allegations are made against A6 are vague and frivolous and that the prosecution has grossly failed to prove the charges against A6. According to the learned advocate Mr. Lalakiya, the learned trial Judge has rightly come to the conclusion, after thoroughly scrutinizing the evidence led by the prosecution against A6 and thereby rightly acquitted him from the charges. That, the impugned judgment and order passed by the learned trial Judge is quite legal, proper and no interference is warranted by this Court. Hence, it was requested by him to dismiss the Appeal.
8. Having considered the case, submissions made for and on behalf of the learned advocates appearing for respective respondents and learned APP for the prosecution, first of all, when the accused are facing charge under Sections 361, 366, 376 IPC, the prosecution is bound to prove the following ingredients of Section 361, which reads thus-
[a] that person kidnapped was under 16 years if male or under 18 years if female, or insane;
[b] that person kidnapped was in keeping of lawful guardianship;
[c] that accused took or enticed such person out of such keeping; and
[d] that accused did so without consent of lawful guardian.
9. Section 363 IPC prescribes punishment to be awarded to the accused on proving the offence by the prosecution, which shall be of either description for a term which may extend to seven years and shall also be liable to fine. Whereas, to constitute an offence under Section 366 IPC, it is equally necessary for the prosecution to prove the following ingredients, viz.,
[a] that the accused induced the complainant or compelled by force to go from any place;
[b] that such inducement was by deceitful means;
[c] that such abduction took place with the intent that the complainant may be seduced to illicit intercourse;
[d] that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction.
10. Under Section 361 IPC, the offence of kidnapping would be complete, moment the minor girl under 18 years'' of age is actually taken from lawful guardianship, without the consent of such guardian. Even the assumption that victim girl would escape thereafter would not exonerate the accused from offence of kidnapping. While, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant-victim or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or proves that the abduction is for the purpose mentioned in Section 366 IPC, the Court cannot hold the accused guilty and punish him under Section 366 IPC.
10.1. In case of Vinod Chaturvedi v. State of M.P., AIR 1984 SC 911, at the behest of one of the accused victim went inside his house came properly dressed to accompany the group to a village. Subsequently, the victim was murdered. But the act of picking up of this victim was unconnected with what happened to the victim later. It was held the accused is not guilty.
11. In view of the words "under sixteen years of age if a male, or under eighteen years of age if a female" occurring in Section 361, the question of proof of age assumes great importance. As observed by the Supreme Court in case of prosecution under Section 366, the age of the victim girl is a very important factor, particularly so when according to the medical evidence she is found to have been used to sexual intercourse. Prosecution is bound to prove that age of the victim girl was below 18. The data from which age may be ascertained are : (1) teeth, (2) ossification of bones, (3) height and weight, (4) miscellaneous signs. When considered individually little reliance is to be placed on each individual test, but taken together they may offer a fairly reliable means to ascertain the age. Medical evidence about age based upon epiphyses of bones is based on scientific test and is acceptable. But, if there is any conflicting evidence eg., conflict between medical evidence and entry in school certificate, the benefit of the uncertainty as to age should go to the accused. The only conclusive piece of evidence of girl''s age may be the birth certificate, but unfortunately, in this country, such a document is not ordinarily available. The Court or jury has to base its conclusion upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. Further, birth certificate and oral evidence when are doubtful, radiologist''s opinion as to age is to be accepted. The definite opinion of radiologist as to age cannot be discarded on confusing evidence mingled by conjecture. In a Delhi case, the age of a victim of rape and kidnapping was in issue. The radiologist reported and gave evidence to the effect that the victim was below 16. But the father of the victim in evidence said that he had been married 45 years ago; the victim was his youngest issue; he had nine children each being born on a gap of two years and all the children were born within 20 years of their marriage. So, on calculation, the age of the victim should have been 25. The Court, however, preferred the evidence of the radiologist to the evidence of the father, the victim''s father being illiterate and gap of two years stated was obviously by guess. The girl was found by the Court to be below 16 years.
12. Now, if we examine the age of the victim in the instant case, it appears that the prosecution has examined Dr. Rohit Babubhai Bhigradia at Exh. 73 before whom victim was brought by one woman constable of Katargram Police Station. As per the testimony of this witness, he was posted as Medical Officer in Civil Hospital at Surat when the victim was brought before him for physical examination. Victim had given history before this Doctor that she had married with a person named Bipin with her consent some three months back. This witness has referred this victim to a radiologist for ascertaining her age and as per the opinion of the Radiologist, age of the victim was more than 14 years and below 16 years. The said opinion has been placed on the record at Exh. 74. In the cross examination of the complainant, she has admitted that victim was admitted in the school by her parents. When the complaint was registered, she had a birth date certificate, original of which was handed over to the Police. It appears that in a complaint Exh. 48, disclosure of handing over of xerox copy of Birth Date Certificate to the Police is seen, produced vide Exh. 92. It appears from the testimony of this witness that school leaving certificate of the victim was handed over to the Police earlier in point of time. In the birth date certificate at Exh. 49 of the victim, her birth date is shown as 28th June 1984 and the date of incident, as per the prosecution case is 25th March 2000, and therefore, it can be said that at the time of committal of the offence, she was approximately aged 15 years and 9 months. It appears that in the birth date certificate, name of the victim is also disclosed. In the routine course, name of the newly born baby boy/girl would not appear in the Birth Certificate. As per the prosecution case, after completing ceremony on the 6th day of the victim, her name was entered in the Birth Certificate. It has come on the record that the birth of the victim was in a small village and she was admitted in the school by her mother, and therefore, it can be said that age of the victim might have been disclosed by her mother to the school authorities on presumption. As per the report of the radiologist at Exh. 74, her age was shown between 14 to 16 years, however, surprisingly, the prosecution has not chosen to examine the said Radiologist who has given opinion and stood satisfied by producing such certificate of her birth. Thus, no satisfactory evidence with regard to birth date of the victim was produced by the prosecution. If we accept the opinion of radiologist, difference of two years more or below the age can be considered, and hence, age of the victim can be considered about 18 years at the time of the offence.
13. Now, the second question would be whether the victim was taken or enticed away from the lawful guardianship without consent of such guardian. The complainant in her cross examination has admitted that the victim was staying with her sister and she was working in a diamond polishing factory. She was independently moving from her place of work to her residence. She was not under the guardianship of her sister Madhuben permanently. This suggest that she was not taken or enticed away by the accused from the lawful guardianship of Madhuben. It has also come on record from the cross examination of the victim that the accused no. 1 had never asked her to marry. It would be necessary to go through the statement of the victim recorded by the Police on 26th June 2000, which is also supported by the Investigating Officer in his examination-in-chief before the Court. Victim has stated in her statement that she came in contact with Bipin Nanalal Jani and both of them use to frequently meet in the factory premises where she was also working. Their love affair came to knowledge of her sister and brother-in-law. She herself and the accused no. 1 had a meeting with them at the residence of Rameshbhai Dholaria and Bupendra Makwana. Victim has also admitted in her cross examination that since 5 to 6 years, she was staying with her elder sister Madhuben and brother-in-law Dilipbhai. She was forced by them to engage herself in business of diamond polishing, however, her health was not permitting her. Due to routine torture and cruelty given to her by her sister and other family members, she was tired off of the same and felt that she would not be safe in the house or would be happy. The boy with whom her engagement was fixed was disliked by her, however, she was pressurized by the family members to marry the same boy with whom she did not like to marry. As she was engaged in a business of diamond polishing where the accused no. 1 was also serving and they were satisfied that they would be happy, if they would join each other, hence, she informed the accused no. 1 that she was suffering from ill treatment meted out to her by her sister and other family members, and therefore, she made a proposal to marry him by eloping. The accused no. 1 informed her to wait for some period, since the proposal made by the victim was not acceptable to him, but, she was tired off and made repeated requests to the accused no.1 frequently urging to marry her. Despite frequent requests made by her, she was informed by A1 to wait for a certain period and after discussing the issue with advocate, he would decide the future action. She has further stated in her statement that on 21st March 2000, she was tired off and had a meeting with A1 at the residence of A2. She requested A1 in presence of A2 to get her with him from her residence as she was wiping. A2 accompanied the victim to reach her at her residence. Victim had also requested A2 not to disclose the fact to her sister as she want to elope with A1. She has further stated in her statement that on 23rd March 2000, A1 informed that if she had trust in him and want to stay with him permanently, the marriage was the only solution, and thereafter, he can keep her with him. As per advice given by advocate ie., A8, her age must be of 18 years or more and for getting the marriage, school leaving certificate was required. As she had no school leaving certificate showing her date of birth, she informed A1 accordingly, and therefore, she was advised to execute an affidavit declaring her date of birth. Thereafter, with the help of advocate ie., A8, one affidavit was executed under her signature duly endorsed by Executive Magistrate with his seal of office. Thereafter, after getting the form from the Priest at Shahpur about the marriage registration, the same was filled up and on a request made to the Priest, signature of the Priest was obtained by them and their marriage was registered in the office of the Registrar of Marriages. Of course, in the testimony before the Court victim has stated different story than the one stated in the Police statement. Testimony of the victim is quite contrary to her statement. Hence, whatever allegations are made against A1 and other accused are not supported by her statement before the Police. It transpires from the evidence of the victim and statement which is approved by the Investigating Officer that victim was in love with A1 and she herself had requested A1 to get marry by eloping. There is no evidence available on record to suggest that A1 had ever requested to marry him by eloping or had ever enticed her from the lawful guardianship without the consent of the guardian. On the contrary, it is impressed that victim was under constant pressure of her elder sister Madhuben and therefore she had given testimony against the accused which does not appear to be reliable or create confidence, as it is quite contrary to her police statement. Before Doctor also, victim had given history that she had gone with A1 by consent. All these facts and evidence suggest that she was not kidnapped or abducted or even instigated by A1, but it was she who expressed her desire to elope with A1 and subsequently get married with him, and therefore, offence under Section 363 or 366 IPC is not proved against A1. Prosecution has also failed to prove that A2, A3, A4 & A7 were abettors either in the offence of kidnapping the victim or getting her marriage performed with A1, and therefore, they cannot be involved in the offence.
14. Now, if we consider evidence of the prosecution connecting the accused under Section 376 IPC, victim has stated in her deposition that she was with A1. It appears from the deposition of the victim that on different dates at different places, she accompanied A1. Of course, in the examination-in-chief, she has stated that against her will she was forced to develop physical relationship with A1, but the fact remains that she traveled at different places in a motor vehicle Bus with A1 and they stayed at different places at the residences of relatives of A1. She had never complained of the same to either relatives or neighbours of A1 saying that she was forced by him to have sexual relationship. This would prove that she was consenting party in getting physical relationship with A1. Age of the victim as per the Birth Date Certificate was more than 15 years and 9 months i.e., around 16 years. Considering her deposition and conduct, it is nowhere found that any forcible rape was committed by A1 with the victim. If we look the medical evidence, there is nothing on record which suggests that any rape was committed by force with her as no internal or external injuries were found during the medical examination of the victim. It appears from the record that the form of marriage registration of the victim was produced vide Exh. 86. Prosecution has examined Jayeshkumar Chhaganlal Bhatporia at Exh. 85 who was serving in the Office of Registrar of Marriages at Surat. This witness has stated the procedure of filling up of the form for marriage registration. He has identified the signature of the Registrar of Marriages. In the cross examination, he has admitted that on submitting the form of marriage for registration, there was no scrutiny made of the contents of the form by the Office. Any body can, after filling up the form and providing details therein can submit it in the office. This witness was expected to opine that this form Exh. 83 was signed by A1 and the victim because no signature was made by this person in his presence. It was the duty of the prosecution to prove that in the marriage registration form, signature of the victim as well as A1 was there. No signature of A1 as well as of victim, as a specimen signature was obtained by the I.O nor any expert opinion from hand writing expert was received. Therefore, it is not proved that in the form of marriage registration, victim as well as A1 have put their signature, as allegation is made by the prosecution that A8 had received the signature of both of them by committing cheating, then it was necessary for the prosecution to prove their signature on the document Exh. 83. Victim had never informed the police of the incident, if she was forced by A1 to get marry with him or to have sexual relation any time prior to the date of the incident. Prosecution has failed to prove that A8 has created any bogus document or committed any offence as per the charge under Section 465, 467, 468, 470, 471, 477 [a] read with Section 114 IPC. Victim has of course stated in her examination-in-chief that she was taken away by A1 at different places and that she was confined in one room, but her testimony before the Court is completely contrary to the statement given to the Police, and therefore, her deposition cannot be accepted or relied upon. In fact, had she been confined in one room by A1, she could have made a complaint to any one staying nearby or to the Police, but she had made no grievance against A1. Victim stayed with A1 at different places for about three months. Whatever testimony is given in examination-in-chief by the victim would not attract the provisions of Section 341 and 342 IPC. As per the allegations made against the A6, marriage of the victim was performed with A1 by A6, but in the entire deposition made before the Court, she has not stated that who had performed the marriage ceremony or who was the Priest. Of course, she has identified certain accused before the Court, but this would not establish that remaining accused were present in the marriage ceremony. Mere statement made by the victim that A6 was a Priest in the marriage ceremony would not prove that marriage was performed by A6 because form for registration of marriage was not proved by the prosecution. Only a true copy of the certificate was produced by the prosecution. If name mentioned in the marriage form is shown that of A6, it could not establish by itself that he was the Priest in the marriage of victim with A1. There is no evidence produced by the prosecution that in a marriage form for registration, there was a signature of A6 helping in getting the marriage performed. Prosecution has failed to establish beyond reasonable doubt the age of the victim girl or a boy at the time of marriage ceremony. It appears that in a marriage form for registration, age of the victim was shown 19 years. A6 has denied in his further statement under Section 313 Cr.P.C. that the above marriage ceremony was performed by him. It is not proved beyond reasonable doubt that A6 had performed the marriage having a knowledge that the victim was a minor. Prosecution has also failed to prove that any offence was committed under Sections 4 & 5 of the Prohibition of Child Marriage Act, 2006. Testimony of the victim too has not created any confidence in the trial Court. She herself has made proposal to A1 to elope and marry with her. Of course, she has denied in her cross examination of this fact, but circumstances states otherwise. Moreover, prosecution has examined one Mohammed Zuber at Exh. 71 who was running business of providing Taxi. From his deposition, it is not proved that in his Taxi victim and A1 were sitting. This witness has turned hostile, as he has not supported the statement made before the Police. Here, the victim has abandoned the house of her elder sister of her own accord and has no intention of returning back to the house, she cannot be held to continue in keeping of her lawful guardianship. In such cases, it cannot be stated that she was taken or enticed away out of the keeping of lawful guardianship of her elder sister, when the victim had left the home in consequence of ill treatment given to her and on meeting the accused proposing him to marry with her and went with him, it cannot be held that he has committed any offence, as alleged by the prosecution. The learned trial Judge has rightly passed a reasoned order acquitting all the accused persons. As no illegality or perversity is found by this Court, no interference is warranted.
15. Resultantly, Criminal Appeal fails and the same is dismissed. Bail bond shall stand cancelled. R&P of this case be returned back to the trial Court.
