Ashokbhai Viththalbhai Thakor vs State Of Gujarat
2022 Latest Caselaw 206 Guj

    R/CR.A/545/2021                                ORDER DATED: 06/01/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 545 of 2021

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                      ASHOKBHAI VITHTHALBHAI THAKOR
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Appellant(s) No. 1
MS MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED(64) for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 06/01/2022

                                ORAL ORDER

Present appellant has filed Criminal Misc. Application No. 134 of 2021 before the court of learned 2 nd Additional Sessions Judge and Special Judge, Limkheda, Dist: Dahod u/s 439 of the Code of Criminal Procedure, 1973 requesting to enlarge him on regular bail on account of offence being C.R. No. I/72/2019 of 2020 registered with Dharpur Police Station, Dahod for the offence punishable under Section 363, 366, 504, 376(N)c(3) of Indian Penal Code and section 4, 6 and 8 of the Protection of Children Sexual Harassment Act 2012 and Section 3(1)(w), 3(2)(5-a) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act") wherein the learned 2nd Additional Sessions Judge and Special Judge, Limkheda, Dist: Dahod rejected the said application on 05.04.2021.

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Feeling aggrieved by the said order, appellant has preferred this appeal u/s 14A of the Atrocities Act.

Heard learned advocate for the appellant and learned APP for the respondent-State.

Learned advocate for the appellant has submitted that the present appellant is wrongly involved in the offence by the Investigating Agency. That, the appellant is absolutely innocent person and has not committed any offences whatsoever much less offences as enumerated in the FIR. That, as per the adhar card the victim was major and they got married as per their rites and customs but the complainant wants to sell the victim somewhere else and therefore, they had shown victim as minor. That, there is contradiction in statement of complainant and no procedure was followed for taking serology report. That, there is no birth registration of victim and there is contradiction in date of birth of victim. That, there is no signature of concerned officer while registration of date of birth in record and therefore, it seems doubtful. That, the victim was eloped with the appellant by her own will and wish, and therefore, ingredients of Section 363 and 366 of IPC are not attracted. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order passed by the learned Additional Sessions Judge and release the present appellant on regular bail.

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Learned APP for the respondent-State has strongly objected the submissions made by learned advocate for the appellant and submitted that learned trial court has rightly dismissed the prayer for granting bail to the present appellant as the victim was having minor age of 14 years and 8 months. Referring different certificates, which is part of the charge sheet, it is submitted that birth date of the victim as per certificate issued by the Anganwadi worker is 01.01.2005 and as per certificate issued by Talati cum Mantri, date of birth of the victim is mentioned as 07.01.2007. It was further submitted that consent, if any, on the part of the victim cannot be considered in the present case. It was further submitted that the age of the victim was 14 years and 8 months at the time of committing the offence by the present appellant and the complaint of the alleged offence was registered on 30 th September 2019. It was further submitted that however charge sheet is filed, appellant cannot be released on bail as prima facie involvement of the present appellant has been proved by the prosecution. Hence, it was requested by learned APP for the respondent-State to dismiss the present appeal.

Present appeal was admitted by this Court on 03.05.2021 and this appeal was fixed on 09.06.2021. On 09.06.2021, in the interest of justice, fresh notice of admission was issued to the respondent no.2 making it returnable on 15.07.2021

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through concerned police station and thereafter, this appeal was listed on 17.08.2021; 18.10.2021 and today itself. Today, though called out, none was present for and on behalf of the respondent no.2. Thus, no argument was advanced for and on behalf of the original complainant-respondent no.2 Having considered the facts of the case, submissions made by learned advocate for the appellant and learned APP for the respondent-State as well as documents produced on record, it appears that complaint of the alleged offence was registered by the father of the appellant on 30th September 2019 wherein birth date of the victim was 01.01.2005 stating that her birth date was entered in the record of Anganwadi. A complaint was registered for the offence punishable under Sections 363, 366 and 501 of Indian Penal Code. It is admitted position that during the course of investigation, prosecution has added Section 376(N)c(3) of Indian Penal Code; Sections 4, 6 and 8 of the Protection of Children Sexual Harassment Act 2012 and Section 3(1)(w), 3(2)(5-a) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989. The statement of the victim was recorded during the course of investigation by the Investigating Officer wherein she has supported the case of the present appellant that with consent and voluntarily, she had left her parental home to marry with the present appellant. The appellant has produced one

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document to show that he got married with the victim girl. From the document produced on record, in the Aadhar Card, birth date of the victim girl is mentioned as 1 st January 2001. In the certificate issued by the Anganwadi worker, her birth date is shown as 01.01.2005. Police has recorded the statement of Ranjanben wife of Amarsing Bamaniya on 05.01.2021. Birth certificate of the victim girl produced at page no. 15 was issued by this witness. As per her statement before the police, she has admitted that she was not authorized by the government to issue this certificate. She has further admitted that no evidence was produced when the birth date of the victim was entered into the register of the anganwadi. On an instruction issued by the Sarpanch, she has issued this certificate of birth date in favour of the complainant.

Another certificate which is produced on record at page no. 16 showing the date of birth as 07.01.2007 under the signature of Talati cum mantri, Gram Panchayat, Gayelvagha, Ta: Dharpur, Dist Dahod dated 10.10.2019. Prosecution has relied upon this birth date certificate issued by the Talati cum mantri submitting that victim was a minor at the time of committing offence by the present appellant. Thereafter, as there was some doubt in the birth of the date of the victim, a letter was written by Sarpanch to the Circle Police Inspector, Devgadh Baria on 29th July 2020 to verify the date of birth of

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the victim and verify correct birth date. On 11.08.2020, statement of Ramabhai Valabhai Palas was recorded by the police wherein he has stated that birth certificate showing the date of birth of the victim as 7 th January 2007 was issued under his tenure of service but there was no his signature or handwriting in the birth date certificate, but it was issued by Mr. R. M. Kalasava, former Talati cum Mantri. In fact, this certificate was not issued by him under his signature.

It appears from the record that there are three date of birth certificate of the victim as per the charge sheer papers produced. In the aadhar card the date of birth of the victim is shown as 01.01.2001 and if we consider this certificate, she was major at the time of committing an offence by the appellant. She has supported the defence of the accused/appellant that she had left with the present appellant voluntarily and married with him in the temple. It appears that the appellant has produced one photograph of getting married with the victim at page no. 8.

Considering the peculiar facts of the present case, this Court is of the view to exercise the discretion in favour of the present appellant by releasing him on regular bail and present appeal deserves consideration.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 05.04.2021 passed by the

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learned 2nd Additional Sessions Judge and Special Judge, Limkheda, Dist: Dahod in Criminal Misc. Application No. 134 of 2021 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/- with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellant shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the concerned Trial Court;

[e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

The authorities will release the appellant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned

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Court to delete, modify and/or relax any of the above conditions, in accordance with law.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

Notice stands discharged.

(B.N. KARIA, J) K. S. DARJI