Gujarat High Court
Rakeshkumar Manusinh Vaghela vs State Of Gujarat on 25 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1155/2007 JUDGMENT DATED: 25/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1155 of 2007
With
R/CRIMINAL REVISION APPLICATION NO. 643 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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RAKESHKUMAR MANUSINH VAGHELA
Versus
STATE OF GUJARAT
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Appearance:
BAILABLE WARRANT SERVED for the Appellant(s) No. 1
MR PARTHIV A BHATT(5331) for the Appellant(s) No. 1
MR JAY MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 25/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This criminal appeal preferred by the sole appellant accused under Section 374(2) of the Cr.P.C. is directed against the judgment of conviction and order of sentence dated 06.09.2007 passed by the Additional Sessions Judge, Page 1 of 8 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:38:50 IST 2025 NEUTRAL CITATION R/CR.A/1155/2007 JUDGMENT DATED: 25/02/2025 undefined City Court, Ahmedabad in Sessions Case No.66 of 2007, wherein the appellant came to be tried for the offences punishale under Sections 363, 366 and 376 of the IPC. At the end of trial, the appellant has been convicted under Section 376 of the IPC and sentenced to undergo imprisonment of 1 year and 6 months and also directed to pay fine of Rs.3,000/-, in default, to further undergo 6 months simple imprisonment.
2. Case of the prosecution, in short, is that, on 14.12.2006, at the morning at about 07:00 a.m., the daughter of the complainant was minor, abducted from his residence with an intention to have illicit relations by luring her under the pretext of marriage and she was taken to Pune and other places from 14.12.2006 to 21.12.2006, where against her will, and without her consent, sexual intercourse was done with her by the accused. An FIR in that regard was lodged by the father of the victim. Pursuant to the said FIR, the appellant accused was arrested and after completion of the investigation, he had been chargesheeted. After due frame of charge, upon the appellant accused not guilty, trial commenced before the Additional Sessions Judge. The prosecution examined 9 witnesses and exhibited 14 documents to prove the charge against the appellant:
Oral evidence PW 1 - Exh. 11 Sonalben Amarbahadur Khatri PW 2 - Exh. 14 Dr. Yasmin Mohmedsafi Shaikh, medical officer Page 2 of 8 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:38:50 IST 2025 NEUTRAL CITATION R/CR.A/1155/2007 JUDGMENT DATED: 25/02/2025 undefined PW 3 - Exh. 17 Dr. Heena Vipul Oza, medical officer PW 4 - Exh. 19 Dr. Chunilal Junjaram Kumavat, medical officer PW 5 - Exh. 22 Amarbahadur Kalusinh Khatri PW 6 - Exh. 27 Gulabkhan Hussainkhan Pathan PW 7 - Exh. 28 Rameshbhai Manjibhai Chauhan PW 8 - Exh. 31 Dilipbhai Vasantbhai Pradhan PW 9 - Exh. 34 Ramabhai Lakhabhai Damor Documentary evidence Exh. 35 Complaint dated 13.12.2006 Exh. 36 Report of registration of crime dated 13.12.2006 Exh. 23 Photocopy of birth certificate of prosecutrix dated 23.11.1991 Exh. 29 Entry regarding age of prosecutrix issued by Parth High School dated 19.12.2006 Exh. 24 Panchnama of seizure of clothes of accused dated 21.12.2006 Exh. 25 Panchnama of seizure of clothes of prosecutrix dated 21.12.2006 Exh. 37 Panchnama of scene of offence pointed out by witness Kamlesh dated 06.01.2007 Exh. 16 Medical certificate of prosecutrix dated 08.01.2007 Exh. 20 Medical certificate of accused dated 02.01.2007 Exh. 30 Copy of forwarding letter dated 21.12.2006 Exh. 26 Muddamal receipt dated 02.01.2007 Exh. 21 Indoor case papers of accused Exh. 15 Indoor case papers of prosecutrix
3. After closure of the prosecution evidence, the appellant was questioned, under Section 313 of the Cr.P.C. to which he has stated that he was innocent of all charges and denied the entire incriminating evidence.
4. Though opportunity was extended, no evidence was tendered from the side of the appellant.
5. The learned Additional Sessions Court, relying Page 3 of 8 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:38:50 IST 2025 NEUTRAL CITATION R/CR.A/1155/2007 JUDGMENT DATED: 25/02/2025 undefined principally on the xerox copy of the birth certificate, came to a conclusion that the victim has not completed 16 years on the date of incident and on appreciation of the evidence, the Court below observed that the case being love affair and considering the age of the accused, convicted and sentenced the accused to undergo 1 year and 6 months for the offence punishable under Section 376 of the IPC and acquitted for the offences under Sections 363 and 366 of the IPC.
6. Being dissatisfied with the judgment of conviction and order of sentence, the appellant accused has come up with the present appeal.
7. We have heard learned counsel Mr.Parthiv Bhatt and Mr.Jay Mehta, learned APP appearing for the respective parties.
8. Mr.Parthiv Bhatt, learned counsel for the appellant, assails the conviction and sentence mainly on the following grounds:
(a) That the Court below has seriously erred in considering the Xerox copy of the birth certificate. In order to prove the entry of date of birth, the Authorized Officer of the concerned office has not been examined. The prosecution failed to examine the school authority who had issued School Leaving Page 4 of 8 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:38:50 IST 2025 NEUTRAL CITATION R/CR.A/1155/2007 JUDGMENT DATED: 25/02/2025 undefined Certificate, wherein the date of birth was recorded. It is necessary for the prosecution to prove that on what basis, the date of birth being recorded either in the revenue office or in the records of school. In the present case, the victim failed to disclose her date of year as she could not recollect her date of year.
(b) That the victim was in love with the appellant accused and she compelled the accused to take her in his company, as a result of which, she came to Puna on her own volition and lived in the company of the accused for a considerable time which shows that the relations were consensual in nature.
9. On the other hand, opposing the contentions, the learned APP Mr.Jay Mehta has submitted that the Court below has rightly relied upon the entry of date of birth mentioned in the Xerox copy of birth certificate and the same date of birth was registered with the school records. In such circumstances, the Court below while determining the age of the victim has not committed any error. He would further urge that the Court below has considered the relations of the parties and that is why, the accused has been acquitted under Sections 363 and 366 of the IPC. Lastly, he would urge that the victim was less than 16 years and her consent would be no consent in eye of law and therefore, the Court below has rightly convicted the accused under Section 376 of the IPC and taking a lenient view, he has been sentenced to rigorous imprisonment of 1 year and Page 5 of 8 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:38:50 IST 2025 NEUTRAL CITATION R/CR.A/1155/2007 JUDGMENT DATED: 25/02/2025 undefined 6 months which is less than minimum prescribed in the law.
10. In such circumstances, as referred above, Mr.Jay Mehta, prays that there being no merits in the appeal filed by the accused and the same may be dismissed.
11. Having regard to the facts and circumstances of present case, the issue arise for our consideration is as to whether the prosecution proves beyond reasonable doubt the minority of the victim ?
12. We have perused the oral evidence of the victim PW:1, PW:2 Dr.Yasmin Shaikh, PW:3 Dr.Heena Oza and PW:4 Dr.C.J. Kumavat. The victim PW:1 in her testimony did not have stated the year in which she was born. The father of the victim PW:5 has stated that the birth registration of his daughter had been done on 19.11.1991 and he had produced xerox copy of the same at Exh.23. The investigating officer PW:7 Mr.R.M. Chauhan obtained the school leaving certificate of the victim. It is no doubt true that nobody from the school examined and Xerox true copy of the birth certificate brought on record by the prosecution. There is no radiological examination for the purpose of age of the victim. Admittedly, the investigating officer failed to obtain the birth certificate. The prosecution has not examined the authority before whom the birth date was registered.
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13. It is settled legal position of law that an entry of date of birth mentioned in the register maintained by the authority, the documents is admissible under Section 35 of the Indian Evidence Act. We may profitably refer the case of Satpalsingh Vs. State of Haryana (2010 (8) SCC 714), wherein the Supreme Court has held that the entry made in the official records by an official or person authorized in performance of an official duty is admissible under Section 34 of the Evidence Act, but the parties may still ask the Court/authority to examine the probative value. The authenticity of entry would depend as to on whose instructions/information such entry stood recorded and what was the source of information.
14. In the instant case, the father of the victim has produced true copy of birth certificate. The father in his testimony has not stated that on what basis, the date of birth was being recorded with the registration office of birth and death. In such circumstances, in absence of any evidence about the source of date of birth or on whose information, the entry was made, we are of the considered opinion that the probative value of contents of the documents Exh.23 could not have relied by the Trial Court. The prosecution had an opportunity to examine the officers of the concerned office to prove the source of date of birth. The investigating agency in a mechanical manner laid the chargesheet and did not inquire about the certificate of date of birth.
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15. The appellant accused after the conviction has got married with someone and now is settled with his family. The offence alleged to have committed in the year 2007. In such circumstances, we find that the sentence undergone by the accused would sub-serve the ends of justice. The appellant accused is therefore sentenced to the period already undergone and accordingly, this appeal is allowed in part to the extent modifying and reducing the sentence.
16. This appeal is partly allowed. The appellant accused is sentenced the period already undergone. The records and proceedings be sent to the Trial Court henceforth.
17. In view of the order passed in the conviction Criminal Appeal No.1155 of 2007, the suo motu revision i.e. Criminal Revision Application No.643 of 2007 does not require its adjudication on merits and the same is disposed of accordingly.
(ILESH J. VORA,J) (HEMANT M. PRACHCHHAK,J) Rakesh Page 8 of 8 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:38:50 IST 2025