HIMMATBHAI SHANTIBHAI RATHOD Vs. STATE OF GUJARAT
LAWS(GJH)-2016-4-188
HIGH COURT OF GUJARAT
Decided on April 05,2016

Himmatbhai Shantibhai Rathod Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

M.R. Shah, J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction dated 12.10.2015 in Sessions Case No. 103 of 2010 passed by the learned 3rd Additional Sessions Judge, Deesa at Banaskantha, by which, the learned trial Court has convicted the appellant herein - original accused for the offence punishable under Ss. 363, 366 and 376 of the Indian Penal Code and sentence him to undergo 7 years Rigorous Imprisonment with fine of Rs. 10,000/ - and in default to undergo further four months for the offence punishable under Sec. 363 of the Indian Penal Code and has imposed sentence of 10 years Rigorous Imprisonment with fine of Rs. 10,000/ - and in default to undergo further four months, by which, the learned trial Court has imposed the sentence of life imprisonment (till his last breath) and fine of Rs. 1 lacs and in default to undergo one year for the offences punishable under Sec. 376 of the Indian Penal Code, the appellant herein - original accused has preferred present Criminal Appeal.
(2.) The case of the prosecution in nutshell is as under: 2.1. That one Natvarlal Valchandbhai Soni -father of the victim lodged the FIR with the Dhanera Police Station being CR -I -28 of 2009 initially for the offences punishable under Sec. 363, 366 and 114 of the Indian Penal Code. It was the case on behalf of the original complainant that he stayed at Dhanera and he has two daughters and one son and the eldest daughter - victim was aged 17 years and younger daughter is Khusbu. It was alleged in the complaint that on 11.12.2009 after taking dinner at about 10 p.m. his both the daughters were sleeping in the inside room and he, his wife and son were sleeping in the front room of the house. That about 6 a.m. in the morning, the mother of the victim went to the room and found that his elder daughter is missing and door from the rare portion of the house was open. When they asked younger daughter Khusbu, she started crying and on asking she toll that at about 12.30 mid night somebody knocked the door and the victim open the same and accused Himmatbhai Shantilal Rathod and Vinod Manojbhai Thakker went inside and both of them gave the threats and therefore, they did not shout and both the accused stolen the gold ornaments and took the victim and they run away in the white colour Alto Car. He further stated that as the minor Khusbu was afraid and/or frighten, she did not informed anybody in the night and she went to sleep. It was further alleged that on inquiry it was found that gold ornaments from the safe vault was stolen. It was further stated in the FIR that thereafter he called his brother and informed them about the incident and they went to the house of the accused Himmatbhai Shantilal Rathod and Vinod Manojbhai Thakker and inquired, however both of them have not found at the respective house. That they did lodged any complaint till 16.12.2009, due to the fear in the society. However, as despite due inquiry, their daughters was not found and therefore, complainant lodged the aforesaid FIR with the Dhanea Police Station for the aforesaid offences. Thereafter, accused and victim were found out and after recording the statement of the victim, Investigating Officer made the report to add offence under Sec. 376 and 506(2) of the Indian Penal Code. The aforesaid FIR was investigated by one Shri Ranjitsinh Athesinh Jadeja PW No. 11. He recorded the statement of the concerned witnesses. He also sent the victim to the hospital for medical examination. The victim was examined by the Medical Officer - Dr. Niteshkumar Dabhi - PW No. 8. The Investigating Officer also obtained proof with respect to age of the victim and it was found that at the time of date of incident the victim was aged 17 years and 10 months. That thereafter, Investigating Officer filed the charge sheet against the accused in the Court of learned JMFC, for the offence under Ss. 366, 363, 376 and 506 (2) of the Indian Penal Code. At this stage, it is required to be noted that though initially the allegation was against two persons namely Himmatbhai Shantilal Rathod and Vinod Manojbhai Thakker, as nothing was found against Vinod Manojbhai Thakker, the Investigating Officer submitted the report before the concerned Magistrate to drop his name and therefore, the charge sheet was filed only against the accused - Himmatbhai. 2.2. As the case was exclusively triable by the learned Court of Sessions, the learned Magistrate committed case to the learned Sessions Court, Banaskantha, which was transferred to the Court of learned 3rd Additional Sessions Court, Deesa, which was numbered as Sessions Case No. 103 of 2010. 2.3. The accused pleaded not guilty and therefore, he came to be tried by the learned trial Court for the aforesaid offences. 2.4. To prove the case against the accused, prosecution examined following witnesses: JUDGEMENT_188_LAWS(GJH)4_2016.jpg 2.5. Through the aforesaid witnesses, the prosecution brought on record the following documentary evidence: JUDGEMENT_188_LAWS(GJH)4_20161.jpg 2.6. At this stage, it is required to be noted that victim could not be examined by the prosecution, as after the incident had taken place and she was brought back the victim was married to some another person at Surat and thereafter she died due to some sickness. That thereafter, after closing pursis was submitted by the prosecution, further statement of the accused came to be recorded under Sec. 313 of the Code of Criminal Procedure. On behalf of the defence, documentary evidence Exh. 27 to Exh. 90 were produced along with documents list produced at Exh. 27 and the defence brought on record the photograph of the victim and the accused and conversation through Email between accused and victim etc. to show that both the accused and the victim were in love since long. 2.7. That at the conclusion of the trial and despite it has come on record that though the accused and the victim were in love since long and that both of them ran away and stayed in Himachal Pradesh for one and half months as husband and wife and that despite history given by the victim before the doctor that she ran away with the accused as they were in love, by impugned judgment and order the learned trial Court has convicted the original accused for the offence under Ss. 363, 366 and 376 of the Indian Penal Code and has sentenced the accused to undergo 7 year RI with fine of Rs. 10,000/ - and in default to undergo four months further imprisonment for the offence under Sec. 363 of the Indian Penal Code and sentenced the accused to undergo 10 years RI with fine of Rs. 10,000/ - and in default to undergo four months imprisonment for the offence under Sec. 366 of the Indian Penal Code and also sentenced the accused to undergo life imprisonment (till last breath) with fine of Rs. 1 lacs and in default to undergo further one month imprisonment for the offence under Sec. 376 of the Indian Penal Code. 2.8. Feeling aggrieved and dissatisfied with the order of conviction passed by the learned trial Court, the accused has preferred present Criminal Appeal.
(3.) Shri Ankit Bachani, learned advocate for the accused has vehemently submitted that in the facts and circumstances of the case the learned trial Court has materially erred in convicting the originally accused for the offences under Ss. 363, 366 and 376 of the Indian Penal Code. 3.1. It is vehemently submitted by Shri Ankit Bachani, learned advocate for the original accused that in the present case as such the victim was aged 17 years and 10 months at the time of incident. It is submitted that learned trial Court has not properly appreciated the fact that the girl -victim herself ran away with the accused voluntarily and as per her wish and Will as they were in love since last more than one and half years. It is submitted that therefore, it was the case of consent and therefore, considering the provision of Ss. 375 and 376 prevailing at the time of incident had taken place, the learned trial Court ought not to have convicted the original accused and ought to have acquitted him. 3.2. It is vehemently submitted by Shri Bachani, learned advocate for the original accused that the learned trial Court has not properly appreciated the fact that as such both the accused as well as victim were in love since last more than one and half years ran away with the consent of the victim/girl, as the parents of the girl wanted to get her marry elsewhere which was not liked by the victim/girl. It is submitted that therefore, after they ran away, they stayed in Himachal Pradesh for one and half months as husband and wife and that both of them had sexual intercourse with consent. It is submitted that even the learned trial Court has not properly appreciated the fact that even after the accused and victim were apprehended and were arrested both of them tried to commit suicide by cutting vain, which is established and proved from the deposition of the Dr. Niteshkumar Dabhi. 3.3. It is further submitted that even the learned trial Court has not properly appreciated the deposition of the PW No. 1 - Natvarlal Valchandbhai and PW No. 2 Bhavnaben Natvarbhai - parents of the victim. It is submitted that the parents of the deceased had specifically admitted that their daughter was gifted mobile by the accused before one year. They also stated in the cross examination that accused and victim were in touch through phone call and that too almost everyday. It is submitted that even the mother of the victim had specifically admitted that her daughter was in love with accused. 3.4. It is further submitted that even the learned trial Court has not properly appreciated and/or considered the deposition of the Investigating Officer Shri Ranjitsinh Jadeja - PW No. 11. It is submitted that in the cross examination Investigating Officer has specifically admitted that during the course of the investigation, he found that victim and accused were in love. He has also admitted in the cross examination that during the course of the investigation it was found that both accused and the victim were staying in Himachal Pradesh as husband and wife. It is further submitted that learned trial Court has not even properly appreciated and considered the documentary evidence produced by the defence which is clearly proved and established beyond doubt that both victim and accused were in love since long. 3.5. It is further submitted by Shri Bachani, learned advocate for the original accused that even considering the medical evidence and even deposition of Dr. Niteshkumar - PW No. 8 who examined the victim, it cannot be said that the accused had committed the rape on the victim and/or sexual intercourse against her Will and Wish. It is submitted that no injuries were found on the private part of the victim. It is submitted that therefore, the prosecution has miserably failed to prove that the accused had sexual intercourse with the victim against her Will and Wish. 3.6. It is further submitted by Shri Bachani, learned advocate for the accused that even before the doctor also the victim clearly stated that they had sexual intercourse on number of times and occasions when they were staying as husband and wife in Himachal Pradesh. It is submitted that in the history given by the victim before the Doctor, she never stated that the accused had sexual intercourse with her against her Wish and Will. 3.7. It is further submitted by Shri Bachani, learned advocate for the original accused that even the FIR was lodged belatedly after a period of five days. It is vehemently submitted that even the conduct on the part of the sister of the victim suggest that when victim ran away with the accused in the mid night on 16.12.2009, thereafter she did not do anything. It is submitted that as such all the family members including the sister of the victim were knowing the relation between the accused and the victim. 3.8. It is submitted that therefore, when victim ran with the accused with her consent and that they had sexual intercourse with the consent of the victim and victim at the time of incident was aged 17 years and 10 months, considering the provision of Ss. 375 and 376 of the Indian Penal Code prevailing at the time of incident, the learned trial Court ought to have acquitted the original accused. It is submitted that as such learned trial Court has materially erred in invoking amended provision of Ss. 375 and 376 of the Indian Penal Code not prevailing at the time of incident and therefore, learned trial Court ought to have acquitted the original accused. It is submitted as such learned trial Court has materially erred invoking amended provision of Ss. 375 and 376 of the Indian Penal Code, which admittedly had come into force on 3.2.2013. It is submitted that at the time when the incident had taken place on 11.12.2009 sexual intercourse with girl aged less than 16 year was held to be rape. It is submitted that thereafter in the year 2013, more particularly, w.e.f. 3.2.2013 Sec. 375 of the Indian Penal Code has been amended, age of 16 years is enhanced to 18 years. It is submitted that the amendment in Sec. 375 of the Indian Penal Code has come into effect w.e.f. 3.2.2013. It is submitted that therefore, the amendment in Sec. 375 shall not be applicable retrospectively and shall be applicable prospective and w.e.f. 3.2.2013 only. It is submitted that learned trial Court has materially erred and as such has committed grave error in observing that sexual intercourse with the girl aged less than 18 years shall be a rape. It is submitted that as such amended Sec. 375 shall not be applicable to the facts of the case on hand, more particularly, when the date of offence is 16.12.2009. 3.9. It is further submitted by Shri Bachani, learned advocate for the accused that even the learned trial Court has materially erred in imposing the sentence of life imprisonment (till last breath) with the fine of Rs. 1 lacs and in default to undergo further one year imprisonment for the offence under Sec. 376 of the Indian Penal Code. 3.10. It is vehemently submitted that once the learned trial Court has imposed the sentence of life imprisonment (till last breath) there was no question of imposing default sentence of one year imprisonment in default to pay fine of Rs. 1 lacs. Making above submissions, it is requested to allow the present appeal and quash and set aside the impugned judgment and order of conviction and sentence and acquitted the accused from all the offences for which he was charged and tried.;


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