Gujarat High Court
Khanjan Narjibhai Palas vs State Of Gujarat on 18 September, 2025
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 745 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
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KHANJAN NARJIBHAI PALAS
Versus
STATE OF GUJARAT
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Appearance:
BAILABLE WARRANT SERVED for the Appellant(s) No. 1
MR HIREN P VYAS(2269) with MR MAHARASHI SHUKLA for the
Appellant(s) No. 1
MS SEJAL H VYAS(3211) for the Appellant(s) No. 1
MR ROHANKUMAR RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/09/2025
ORAL JUDGMENT
1. The Appeal under Section 374 of the Code of Criminal
Procedure, 1973 (hereinafter referred to in short as 'Cr.P.C.')
is directed against the judgment and order dated
26.08.2002 passed by the learned Additional Sessions
Judge, Ahmedabad, Court No.10 in Sessions Case No.140 of
2000.
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2. The appellant as an accused came to be convicted
under Section 363 of the Indian Penal Code (IPC), and
sentenced to undergo rigorous imprisonment of two years
and fine of Rs.1,000/- and in default of payment of fine, to
undergo simple imprisonment of three months, whereas
under Section 366 of IPC, was ordered to suffer rigorous
imprisonment of two years with payment of fine of
Rs.2,000/- with the default stipulation to undergo simple
imprisonment for four months. While under Section 376 of
IPC, the conviction was with the sentence of rigorous
imprisonment for three years, ordered to pay fine of
Rs.3,000/- and in default of payment of fine, to undergo
simple imprisonment of six months. All the sentences were
ordered to run concurrently, with the benefit of set off for
the time spent in judicial custody.
3. The facts of the case as could be drawn from the
impugned judgment briefly put are that the accused by
luring the victim girl aged about 14 years, on 16.09.1998 at
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about 15.45 hours without the consent of the parents took
away the girl from their local custody on his motor bike and
then went to Hotel Ghunghat at Gandhinagar and entered
into physical relation with the victim girl. Subsequently on
17.11.1998, again the victim was taken away from the
guardianship of the parents. A writ petition was filed by the
father of the victim girl before the High Court for Habeas
Corpus on 11.01.1999. It is the prosecution case that
during this period, accused had sexual relations with the
victim girl.
4. After due investigation into the complaint made by
Gurudevsingh Jasbirsingh Bakshi, the police filed the
chargesheet against the accused. Under Section 209 of the
Cr.P.C., the case was committed to the Sessions Court. The
accused was charged for the offence under Sections 363 and
366 of the IPC on 01.03.2001. Subsequently, charge under
Section 376 of the IPC was added on 25.05.2001.
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5. The accused challenged the addition of the charge
before this High Court preferring Criminal Revision
Application No.357 of 2001. The applicant accused
thereafter, chose to withdraw the application thus, the trial
proceeded against him wherein the accused pleaded not
guilty to the charges framed against him.
6. The prosecution in all examined 11 witnesses. Further
statement under Section 313 of Cr.P.C was recorded
whereby the accused admitted the fact that he knew the
victim-prosecutrix as he was visiting Smruti Apartment,
Near Azad Society where he had a friend living there. The
accused admitted of his regular meeting with the
prosecutrix at her residence since one of his friends was a
friend of the elder sister of the prosecutrix. The accused
further stated that he was ensured by the mother of the
prosecutrix that he would be engaged to be married to the
prosecutrix and therefore, with the mother's wish and
desire, he was meeting the prosecutrix. The accused also
stated that the prosecutrix and he were good friends and
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they had the blessings of the mother of prosecutrix.
Accused denied the allegation that the prosecutrix was
abducted from the guardianship of her parents as he
pleaded ignorance of her age.
7. Learned advocate Mr. Hiren P. Vyas with Mr.
Maharashi Shukla for the appellant raised the contention
that the impugned judgment and order is illegal, erroneous
and against the weight of evidence on record and provisions
of law. Learned advocate for the appellant Mr. Hiren P.
Vyas submitted that the delay in filing the First Information
Report (FIR) and three different statements of the
prosecutrix recorded on 22.09.1998, 23.09.1998 and
15.01.1999, with the comparative analysis of the statements
with the Habeas Corpus petition filed on 11.01.1999 would
clarify that the prosecutrix had herself left her house on her
own volition and with the consent of her mother, and none
of her statements alleges of any offence under Section 376
of IPC. The prosecutrix has not alleged of any sexual
intercourse between her and the appellant.
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8. Learned advocate Mr. Vyas for the appellant further
contended that the learned trial Court Judge erred in
coming to the conclusion that the prosecutrix was subjected
to rape inasmuch as the medical certificate dated
06.10.1998 of the prosecutrix does not disclose any external
or internal marks of injury. The observation of the Medical
Officer does not record of any physical relation established
immediately prior to the complaint.
9. Learned advocate Mr. Vyas submitted that the trial
Court had come to an erroneous conclusion that the
prosecutrix was below 16 years of age, where the learned
Judge has failed to appreciate the Injury Certificate which
determines the age of the prosecutrix as per the Radiologist
opinion. Dr. Bharat Shankarlal Dave's evidence was
required to be appreciated on the basis of principle of law
that there could be marginal error of two years which would
mean that the prosecutrix would have been above 18 years
at the relevant point of time.
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10. Mr. Vyas learned advocate for the appellant further
stated that the statement and deposition of the parents and
sister of the prosecutrix do not make any allegation of
sexual intercourse between the prosecutrix and the
appellant and the prosecutrix for the very first time on
08.05.2001 after lapse of 32 months in her examination in
chief stated that she was subjected to sexual intercourse by
the appellant. The evidence recorded of the prosecutrix
reveals that the prosecutrix was major at the relevant point
of time. She was having a love affair with the appellant and
she under the consent of her family members had relation
with the appellant with an intention to marry but the
prosecutrix at the instance of her parents changed her mind
and therefore, the appellant got falsely implicated by them.
11. Advocate Mr. Vyas vehemently raised the issue that
the learned trial Court failed to appreciate that the
Certificate dated 12.12.1998 issued by the New Samarth
High School, Ahmedabad was on the basis of the School
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Leaving Certificate of the earlier school attended by the
prosecutrix which was Little Flower, Ahmedabad and the
date of birth noted was 16.11.1984 where it has been on
record that the place of birth of the prosecutrix is Delhi.
Mr. Vyas thus submitted that the evidence relied upon for
the birth date is not conclusive and no authentic record
from Municipal Corporation or the Government showing the
correct date of birth has been produced on record by the
prosecution.
12. Advocate Mr. Vyas also contended that the learned
Sessions Judge failed to appreciate that the father of the
prosecutrix could state the age of the prosecutrix as 16
years contrary to the complaint, and that evidence of the
father was to be compared with the radiologist report to
determine the age, Mr. Vyas thus contended that inspite of
there being evidence on record contrary, erroneous finding
was recorded.
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13. Advocate Mr. Vyas submitted that the deposition of the
victim for the first time in the chief examination after about
32 months from the alleged incident relied upon by the trial
Court was to observe that the prosecutrix was subjected to
sexual intercourse by the appellant would be contrary to the
provisions of law when the prosecutrix has not given any
such statement before the police of physical relation with
the accused. The learned trial Court Judge was required to
appreciate that the Habeas Corpus petition was filed by the
complainant after the prosecutrix had returned home and
the proceedings in the Habeas Corpus petition would reflect
that the prosecutrix had made a complaint against her
parents, inspite of those evidence on record, no cognizance
has been taken of those facts.
14. Learned advocate Mr. Vyas further made a submission
that it was erroneous of the learned Sessions Judge in not
believing the Investigating Officer who was an independent
witness and that there was no irregularity in his
investigation. The evidence of the Doctor was also required
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to be appreciated who found no adverse injuries to consider
the case of rape.
15. Mr. Vyas relied upon the judgment in the case of Akula
Raghuram v. State of Andhra Pradesh reported in (2025) 4
SCC 209 for his submission to state that when the Doctor
specifically refers a victim to the Radiologist and based upon
the Report, a Certificate of age is issued then it has to be
believed.
16. Learned advocate Mr. Vyas has also placed reliance on
a Division Bench judgment of this Court dated 21.09.2023
in the case of State of Gujarat v. Lalji Chhaganaji Thakor
and Another in Criminal Appeal No.902 of 1996 to submit
that the prosecution was required to corroborate the
evidence of the School Leaving Certificate for establishing
the date of birth by producing the Register of Birth from the
place where the birth was registered, while in this case Mr.
Vyas stated would be Delhi. Mr. Vyas also placed reliance
on Rule 12 of the Juvenile Justice (Care and Protection of
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Children) Rules, 2007 to submit that incase the
matriculation or equivalent certificates are not available,
then in absence, the date of birth certificate from the school
first attended other than the first play school would be
required to be produced and in absence of birth certificate
from first school attended, the birth certificate from a
Corporation or a Municipal Authority or a Panchayat would
become admissible. Mr. Vyas submitted that matriculation
or equivalent certificate could not be brought on record and
date of birth certificate from the school first attended was
not produced during trial, nor the certificate from Delhi
Municipal corporation was brought, and in absence of all,
the Radiologist Report would become a necessary evidence
on record to consider the age of the victim.
17. In view of the submissions raised with the case laws
referred, learned advocate Mr. Vyas prayed to allow the
Appeal and acquit the accused.
18. Learned APP Mr. Rohankumar Raval submitted that it
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had been proved during the trial the victim girl was aged
about 14 years at the time of the incident, and even if the
girl voluntarily joins the accused, her act cannot be
considered as an independent act. It is submitted that
when documentary proof of age is believed by the trial
Court, then no further evidence would be necessary to re-
examine the age of the prosecutrix. It is further submitted
that the case of the prosecution was that the minor girl was
kidnapped from the lawful guardianship, with an intention
to have illicit intercourse, and the prosecution has
established that there was allurement previously also,
therefore, any defence of the victim girl voluntarily going
away with accused would not be valid. Learned APP has
raised a submission that it is not necessary to prove any
active part played by the accused immediately prior to the
minor leaving her lawful guardian. Mere role of the
accused at any stage by which he either solicited or
persuaded the minor to abandon the legal guardianship is
sufficient to hold him guilty. Relying on the provision of
Section 35 of the Evidence Act, learned APP submitted that
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the Register maintained in the school is permissible in
evidence to prove the date of birth of a person since such
records are maintained in the school in discharge of public
duty and such documents having its evidentiary value
corroborated by the oral evidence of the parents as well as
the prosecutrix, the conviction is valid, which should be
upheld.
18.1 Learned APP Mr. Rohankumar Raval has relied upon
the following decisions of the Hon'ble Courts :-
l State of Haryana v. Raja Ram reported in 1973 (1)
SCC 544;
l Thakorlal D. Vadgama v. State of Gujarat reported
in (1973) 2 SCC 413;
l Java Mala v. Home Secretary, Government of
Jammu and Kashmir reported in (1982) 2 SCC 538;
l State Of Madhya Pradesh v. Anoop Singh reported
in (2015) 7 SCC 773 and
l The decision of the High Court of Delhi dated
02.07.2024 in Court on its Own Motion v. State of
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NCT of Delhi in Crl. Ref. No.2 of 2024.
19. Having heard the learned advocates for the respective
parties, perused the record. The conviction of the accused
was under Sections 363, 366 and 376 of IPC.
20. Section 363 refers to punishment for kidnapping from
lawful guardianship. The Section 361 denotes the age of the
female as 18 years considering the female below the age of
18 years as minor. Further, the word "lawful guardian"
finds explanation in the Section. The act of taking or
enticing any female under the age of 18 years out of the
keeping of lawful guardian of such minor without the
consent of such guardian is said to be kidnapping such
minor from lawful guardianship. The expression 'keeping'
which is employed in the section is co-related to the act of
'taking' or 'enticing' any minor. Taking or enticing any minor
out of the keeping of lawful guardian, makes it a punishable
act where the consent of the lawful guardian would be
relevant as fact. In case of Prakash v. State of Haryana
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reported in AIR 2004 SC 227, it has been laid down as
under :-
"The object of S. 361 seems as much to protect the minor
children from being seduced for improper purposes as to
protect the rights and privileges of guardians having the
lawful charge or custody of their minor wards. The
gravamen of this offence lies in the taking or enticing of a
minor under the ages specified in this section, out of the
keeping of the lawful guardian without the consent of such
guardian. The words 'takes or entices any minor ........... out
of the keeping of the lawful guardian of such minor" in S.
361 are significant. The use of the word 'keeping' in the
context connotes the idea of charge, protection,
maintenance and control; further the guardian's charge and
control appears to be compatible with the independence of
action and movement in the minor, the guardian's
protection and control of the minor being available,
whenever necessity arises. Section 361 is designed to
protect the sacred right of the guardian with respect to their
minors wards. On plain reading of this section the consent
of the minor who is taken or enticed is wholly immaterial, it
is only the guardian's consent which takes the case out of
its purview. Nor is it necessary that the taking or enticing
must be shown to have been by means of force or fraud.
Persuasion by the accused person which creates willingness
on the part of the minor to be taken out of the keeping of
the lawful guardian would be sufficient to attract the
Section."
21. While in the case of S. Varadarajan v. State of Madras
reported in AIR 1965 SC 942, it has been held from the
facts of the case that the girl leaving the father's protection
knowingly and voluntarily joining the accused, then it
cannot be considered as an offence of kidnapping. It has
been observed as under :-
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"7. ...It will thus be seen that taking or enticing away a
minor out of the keeping of a lawful guardian is an essential
ingredient of the offence of kidnapping. Here, we are not
concerned with enticement but what we have to find out is
whether the part played by the appellant amounts to
"taking" out of the keeping of the lawful guardian of Savitri.
We have no doubt that though Savitri had been left by S.
Natarajan at the house of his relative K. Nataranjan she still
continued to be in the lawful keeping of the former but then
the question remains as to what is it which the appellant
did that constitutes in law "taking"."
"9. It must, however, be borne in mind that there is a
distinction between "taking" and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard ourselves from
laying down that in no conceivable circumstances can the
two be regarded as meaning the same thing for the
purposes of Section 361 of the Indian Penal Code. We would
limit ourselves to a case like the present where the minor
alleged to have been taken by the accused person left her
father's protection knowing and having capacity to know
the full import of what she was doing voluntarily joins the
accused person. In such a case we do not think that the
accused can be said to have taken her away from the
keeping of her lawful guardian. Something more has to be
shown in a case of this kind and that is some kind of
inducement held out by the accused person or an active
participation by him in the formation of the intention of the
minor to leave the house of the guardian."
22. The prosecutrix's father Gurudevsingh Jasbirsingh
Bakshi was examined as PW1. In accordance to his
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testimony, he and his wife and two daughters were residing
in Ambawadi, Azad Society. His business was of
transportation. His elder daughter is Jasmeet Bakshi-PW3
and the younger one, the prosecutrix. Witness stated that
the age of his elder daughter was 19 years while the
younger daughter-prosecutrix was 16 years. At the time of
the incident, his younger daughter (prosecutrix) was
studying in Little Flower School which was located near
Anjali Cinema, Bhatta, Ahmedabad, in Standard IX and was
not attending tuition classes. He further stated that he was
not knowing about her tuitions since for a certain period,
he would be staying at Delhi and for the rest of the time at
Ahmedabad. The prosecutrix was attending the tuition
classes nearby Azad Society. By pointing the accused in the
Court, PW1-father stated that the accused was meeting
prosecutrix often. In that way, once she had gone to attend
tuition class at that time, the accused took the prosecutrix
away. For about 2-3 hours after the tuition class she did
not return, and he came to know that the accused had
taken away the prosecutrix.
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23. PW1 does not remember the date of incident. He stated
that the accused-Khanjan would often telephone prosecutrix
and therefore, he believed that Khanjan had taken the
prosecutrix away. On the date of incident, since the
daughter did not return back, therefore PW1 and his wife
(PW2) enquired about the daughter at the house of the
accused and from the accused's father and mother. The
witness voluntarily stated that the accused was staying with
his mother at Ahmedabad and the accused's father was
residing at Gandhinagar. They had searched for their
daughter at both the places but she was not found either at
Ahmedabad nor at Gandhinagar.
24. The witness PW1 stated that the parents of the accused
were informing them that they were searching for the
accused. PW1 stated that ultimately, accused was found
from his house at Gandhinagar. Therefore, PW1 believed
that accused's father had given him shelter and inspite of
that,were misdirecting them by falsely informing that they
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were searching the accused. PW1 stated that the
prosecutrix was found from the house of the accused's
father at Gandhinagar. His wife-PW2 brought prosecutrix
back. PW1 further stated that on that day, his wife had
gone to the accused's house where she found the
prosecutrix and also found the presence of the accused and
the accused's father.
25. As per the testimony of PW1-father, prior to PW2,
bringing back the prosecutrix from the house of accused
from Gandhinagar, he had filed a case at this High Court
and in that case, Satellite Police Station brought accused
Khanjan at the Gujarat High Court and on his appearance,
High Court had sent accused to Jail for one month and
thereafter, accused was released on bail.
26. The deposition of the father PW1 further records that
prior to the incident, accused-Khanjan used to telephone
his daughter and when he used to pick up the phone,
accused would cut it. PW1 stated that at their house, in
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one telephone connection, there were two receivers and
handle. PW1 further stated that at certain times, accused-
Khanjan would call his daughter and when the prosecutrix
would pick up the phone, he would listen from the another
receiver and it would be the voice of accused-Khanjan and
he could say that accused-Khanjan was talking in Gujarati
language and whenever, he used to pick up the receiver and
utter 'hello', accused-Khanjan would disconnect the phone.
On the phone, he had never heard long conversations
between the prosecutrix and accused-Khanjan. The
prosecutrix had informed him that the phone call were from
accused-Khanjan and often as there were phone calls of
Khanjan, he could identify his voice.
27. According to PW1, he only knew that prior to the
incident, accused used to phonecall the prosecutrix and
apart from that, rest of the facts were known to his wife and
elder daughter and he was not knowing it. The day on
which the accused had taken the prosecutrix, PW1 did not
have any conversation with accused-Khanjan. Prior to the
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incident, he had once seen Khanjan who was alone. PW1
further stated that Khanjan used to come to the house
opposite theirs in Sameer Apartments and therefore, he
could identify him and after the case he came to know that
the person who was coming at Sameer Apartments was
accused-Khanjan. PW1 further stated that complete facts
were known to his wife-Varendra Bakshi.
28. The witness-PW1 again stated that the age of the
prosecutrix at the time of incident was approximately 16
years. Her year of birth was 1984 and the month was
October. The complaint-Exhibit 8 was given by him, the
police was asking him the question and he answered in
Hindi and accordingly, the complaint was written. The
police thereafter, made him understand the complaint in
Hindi language. The witness-PW1 was further show Mark
6/7 which he stated to be the Certificate of Date of Birth of
the prosecutrix issued by the Samarth English High School.
29. The deposition in examination in chief brings the
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evidence on record that father was hardly staying with the
family at Ahmedabad. The prosecutrix was attending tuition
classes near Azad Society. The prosecutrix was studying in
Little Flower School while the Certificate of date of birth was
from The Samarth English High School. According to the
father, the prosecutrix was 16 years of age at the time of
incident. The father's deposition shows that the accused
was often meeting the prosecutrix and were often having
telephonic conversations, the father was overhearing the
talks. The father was hardly knowing any facts with regard
to the prosecutrix and he had shifted the burden on his wife
and elder daughter.
30. In the cross examination of PW1, the witness stated
that on the day when the prosecutrix was taken away by the
accused-Khanjan, he had not filed the complaint and after
about a month of the incident, he lodged the complaint. He
stated that the period between the accused taking away the
prosecutrix and his filing the complaint, during that period,
prosecutrix had not returned back home. He affirmed that
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on the day when he had given the complaint, the police had
given a copy of the complaint and he had put his signature
on the original complaint. The Habeas Corpus petition was
filed by him on 11.01.1999 an during that period, the
prosecutrix had come back home. The witness clarified that
two or three days prior to his filing the Habeas Corpus
petition, the prosecutrix had returned home. He affirmed
that prior to filing the Habeas Corpus petition, he had
informed his advocate that the prosecutrix returned home.
He further affirmed that the hearing of the Habeas Corpus
petition was on 19.01.1999.
31. The father had not filed the complaint immediately on
that day. The date of accused taking away the prosecutrix
was 19.09.1998. The complaint-Exhibit 8 was registered on
21.09.1998, while the Habeas Corpus petition was filed on
19.01.1999. As per PW1 prior to the writ petition, the
prosecutrix was back home.
32. In the complaint, the father had got it recorded that he
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was having his business in the name of 'Rajasthan-Nagpur
Transport' and that he was staying with his family at
Ahmedabad. His elder daughter was 16 years and the
prosecutrix was 14 years. Their daughters were studying
in English Medium-The Samarth English High School and
the elder daughter was in Standard X and the prosecutrix
was studying in Standard IX. The prosecutrix was taking
tuition between 4.00-5.30 pm from a lady teacher at Azad
Society. From his elder daughter who was also studying in
The Samarth English High School, he came to know that
Khanjan Palash a boy residing behind 15, Vanraj Society,
RTO Ground was often coming to meet the prosecutrix at
the tuition class and was alluring the prosecutrix for
developing love relation. PW1 further stated that he used
to frequently go to inquire at the tuition class at Azad
Society and PW1 had seen the accused standing there with
his bike. On the day of complaint, he informed the police
in Exhibit 8 that approximately 15 days prior, his elder
daughter-Jasmeet had informed him that his younger
sister-the prosecutrix had not gone to the tuition classes
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and was moving around with Khanjan Palash. Therefore,
on that day, PW1 had gone to Azad Society at the tuition
class of the prosecutrix and he found that prosecutrix was
not present there. He waited for some time and then he
saw that Khanjan Palash had brought prosecutrix as a
pillion rider on the bike and therefore, he had threatened
the accused to stop following his daughter.
33. The complaint-Exhibit 8 further notes that on
16.09.1998, daughter-the prosecutrix in her usual routine
from the school had come home and after changing her
clothes had gone to the tuition class at Azad Society. Her
tuition class was at about 4.00 pm and she left the house at
about 3.45 pm, and thereafter, around 4.10 pm, PW1
received a phone call from accused-Khanjan Palash
informing that he was taking prosecutrix out and that he
was having Rs.4,000/- to Rs.5,000/- and informed him that
they would be residing outside for 7-8 days. According to
PW1, thereafter they went to Azad Society but did not find
the daughter-the prosecutrix.
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33.1 In the complaint at Exhibit 8 it is recorded that on the
day of the complaint, the mother of the accused-Divyaben at
about 3 O' clock in the evening had left his daughter-the
prosecutrix at home and had asked PW1 to take care of her.
Thereafter, he asked his daughter-the prosecutrix who
informed that the accused-Khanjan had met her at the
corner of Azad Society and from there, he had taken her and
till that date, they were moving out, therefore, he had given
the complaint with the cause that anytime at around 15.45
hours in the evening on 16.09.1998, Khanjan Palash
resident of 15, Vanraj Society, Behind RTO Ground, Ranip,
Ahmedabad had taken his daughter aged about 14 years
from his lawful guardianship alluring her with the intention
to marry or enticing her for unlawful purpose from the Azad
Society end and therefore, the complaint was given against
the accused for doing the needful.
34. Section 366 of the IPC reads as under :-
"366. Kidnapping, abducting or inducing woman to compel
her marriage, etc.- Whoever kidnaps or abducts any woman
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with intent that she may be compelled, or knowing it to be
likely that she will be compelled, to marry any person
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, shall be
punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to
fine; and whoever, by means of criminal intimidation as
defined in this Code or of abuse of authority or any other
method of compulsion, induces any woman to go from any
place with intent that she may be, or knowing that it is
likely that she will be, forced or seduced to illicit intercourse
with any person shall be punishable as aforesaid."
35. The evidence of PW1 as a father would clarify that
father was having the knowledge that the accused was often
meeting prosecutrix and was also often talking with the
prosecutrix on phone. The father is not aware of the date
of incident. The complaint-Exhibit 8 dated 21.09.1998 has
referred to the date of incident as 16.09.1998 and the father
in the complaint-Exhibit 8 states that the mother of
accused-Divyaben brought the prosecutrix home at about
3.00 clock and asked the complainant to take care of her.
36. As per the Investigating Officer-Bharatsinh Punjuba
Waghela-PW10, the prosecutrix had run away on
17.11.1998 and had appeared at Judge Bungalow Chowky
before him on 15.01.1999. This fact contradicts the
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complaint of the father-Exhibit 8. The father states that the
prosecutrix had run away on 16.09.1998 while the
deposition of the Investigating Officer notes the date of
elopement as 17.11.1998.
37. Thus, the base of the investigation which starts from
the complaint-Exhibit 8 becomes doubtful. It then appears
that after the complaint again the prosecutrix had left the
house since in the complaint it is recorded that mother of
accused had brought the prosecutrix back their home. The
provision under Section 366 of IPC as referred hereinabove
does not become applicable unless it is proved that the
kidnapping of the prosecutrix was with an intent to compel
her to marry against her will or to force or seduce her to
illicit intercourse.
38. The deposition of the elder sister-Jasmeet
Gurudevsingh Bakshi as PW3 records that the prosecutrix
had gone twice, first for 2-3 days on 16 th November in the
year of 1998. Both the time, elder sister stated that the
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prosecutrix had gone to accused's house. The elder sister
does not know about what had happened on the date of
incident as she had not gone to the tuition classes on that
day. The elder sister-PW3 states that the prosecutrix had
informed her that she had gone to Khanjan's house and
once, she had gone alongwith Khanjan to Maudi and at the
next time, for two months, she stayed at Khanjan's house.
Police had gone for search but prosecutrix was not found at
the house of Khanjan but the prosecutrix had informed her
that she was at the upper storey in the loft of the house
when police had come there. The elder sister stated that
thereafter, once her mother had gone to Gandhinagar at
Khanjan's father's house and prosecutrix was found there
and her mother had brought her back alongwith her from
Gandhinagar's house. Khanjan's father, brother and sister-
in-law and mother were staying together and when her
mother had visited the accused's house, accused-Khanjan
and prosecutrix were found there alongwith the members of
the family. In the evidence, the elder sister had shown her
ignorance of the prosecutrix meeting the accused at the
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tuition classes and stated that when prosecutrix had left
with accused at that time, she came to know that they were
meeting each other.
39. In her evidence, PW3-the sister stated that during the
first time and second time, when the prosecutrix had left,
she had phoned her and told her that she wanted to marry
accused and had asked her to get the marriage invitation
card prepared. The witness-PW3 had also informed her
mother, who as per PW3 had told her if at all again, there
would be a phone call, then PW3 had to ask the prosecutrix
as to where they would send the Invitation Card after
getting it printed. PW3 further stated the prosecutrix would
not talk with her mother, but prosecutrix would discuss all
the things with her.
40. PW3 further stated that when they had filed the Writ
Petition at the High Court, prosecutrix had come to the
police station on 14.01.1999. Thereafter, the relatives of
accused had come to their house with the proposal for
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marriage, at that time, prosecutrix's mother had informed
that the prosecutrix is still young and that they would at
that time would not think of marriage. According to PW3
prosecutrix was using mobile phone of the accused to talk
with her. She further stated that the second time when the
prosecutrix had left the house, the mother of the accused
had brought back the prosecutrix home. The third time
when she had gone, thereafter, they gave a police complaint
and they had gone to bring back the prosecutrix. PW3
further stated that the accused was the friend of the brother
of her best friend-Mehul.
41. From the testimony of the elder sister, it transpires
that the prosecutrix had left the house thrice. The evidence
suggests that she was leaving the house on her own volition.
The prosecutrix was telling the elder sister of her intention
to marry the accused. The prosecutrix had even asked to
keep ready the Marriage Invitation Card. Second time the
prosecutrix left, she stayed for about two months at the
house of the accused. The witness-PW3 stated that she was
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not aware that second time when the prosecutrix had left
the house she was staying at her friend's residence. Here
prosecutrix is not telling her elder sister that accused
Khanjan had taken her with a promise of marriage. The
intention of marriage appears to be of the prosecutrix.
42. PW2-mother of the prosecutrix-Varendra Bakshi stated
that the prosecutrix was studying in Standard IX and at
that time, she was going to IIM Institute for tuitions and
there, accused used to attract the prosecutrix towards him
by enticing and seducing her, accused had asked the
prosecutrix to sit on his bike. The prosecutrix got
influenced by the accused and she sat on his bike, in that
way, the mother stated that the accused had trapped the
prosecutrix. Thereafter, he had taken the prosecutrix out
for about 4-5 days alongwith him and thereafter, accused
had made the prosecutrix to call and inform that now she
would not return home and thereafter, Divyaben (mother of
accused) had come to leave the prosecutrix home. The
mother stated that thereafter, again accused took the
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prosecutrix and when they enquired they found the
prosecutrix at the house of the accused at Gandhinagar
where all the family members of the accused were present
there and she brought back prosecutrix home and at the
third time, when the prosecutrix was taken by the accused,
the parents and other relatives had kept the prosecutrix at
their home for about two months. Thereafter, they had filed
a writ petition at the High Court. On filing of the case at the
High Court, parents of the accused brought the prosecutrix
at the police station and as per the mother, the parents of
the accused had influenced the prosecutrix and made her
go to Nari Niketan. The mother stated that since the
accused had taken her for the first time, she could say that
it was accused who was taking her often and accused had
taken undue advantage of the prosecutrix, who she stated
was of 14 years. The date of birth of prosecutrix was stated
by mother as 16.11.1984.
43. Learned advocate for the appellant had taken strong
objection to the age of the victim by referring to the evidence
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of PW7-Laljibhai Bachanbhai Parmar, the Head Clerk of The
New Samarth High School, Ahmedabad. Advocate Mr. Vyas
submitted that it has come on record that the prosecutrix
had eloped with the accused thrice. The parents as well as
the elder sister are not sure about the dates of elopement .
As per the father, the prosecutrix was 16 years at the time
of incident while the mother has referred to her age as 14
years. Advocate Mr. Vyas submitted that the first date of
elopement has not been proved but the complaint is dated
21.09.1998 for the incident as alleged of 16.09.1998. The
evidence of PW7 is to the effect that the prosecutrix had
taken the admission in their school-The New Samarth High
School, Ahmedabad on 01.05.1998. The very date of
admission in the School would make the date of birth
doubtful since in the year 1998 earlier before the filing of
complaint too, the prosecutrix had gone with the accused
and therefore, the parents would have all the motive to give
false birth date of the prosecutrix in the new school.
Advocate Mr. Vyas, thus, stated that when the prosecutrix
was still admitted in Std.9, she would not have the
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matriculation certificate and therefore, the date of birth
certificate from school she first attended would become the
admissible evidence and not the document, which has been
brought by PW7. Advocate Mr. Vyas further stated that in
absence of the date of birth certificate from the school
attended, the parents could have produced the birth
certificate given by the Corporation or the municipal
authority, when the place of birth of the prosecutrix is
stated to be at Delhi.
44. PW7-Laljibhai Bachanbhai Parmar was serving as
Head Clerk on 12.12.1998 at The New Samarth English
School. He brought with him the general register for the
year 1998-99. He referred to entry no.592 and stated that
the prosecutrix was admitted to their school from Little
Flower School and as per the entry in the register, the date
of birth of the prosecutrix was 16.11.1984 and that she had
taken the admission in his school on 01.05.1998 in Std.9.
She had left the school on 25.11.1998. In the cross
examination, the witness affirmed that if the facts recorded
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would be false, then, false details would appear to have
been given and stated that when they admit the students in
Std.1, they would insist for the birth certificate from
Municipal Corporation and if the admission is on transfer
from another school, then, they would ask for school leaving
certificate. As per their record, the place of birth of the
prosecutrix was Delhi. The witness could not state whether
the birth certificate of Delhi Municipal Corporation was
produced at Little Flower School.
45. In the case of State of M.P. v. Anupsinh (supra)
referred by the learned APP, reference to the case of
Mahadeo S/o Kerba Maske v. State of Maharashtra & Anr.,
(2013) 14 SCC 637 has been made in context with Rule
12(3) of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 (hereinafter referred to in short as 'JJ
Rules, 2007'), applicable in determining the age.
46. Rule 12 of the Juvenile Rules, 2007 reads as under :-
"12. Procedure to be followed in determination of age.
(1) In every case concerning a child or a juvenile in conflict
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with law, the Court or the Board, as the case may be, the
Committee referred to in rule 19 of these rules shall
determine the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from the date
of making of the application for that purpose.
(2) The Court or the Board or, as the case may be, the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or, as the case may be, the juvenile in
conflict with law, prima facie on the basis of physical
appearances or documents, if available, and send him to
the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted
by the Court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining-
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii)the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii)the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b)and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or
the Board or, as the case may be, the Committee, for
the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side
within the margin of one year, and, while passing
orders in such case shall, after taking into
consideration such evidence as may be available, or
the medical opinion, as the case may be, record a
finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii)
or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or
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the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict
with law is found to be below 18 years on the date of
offence, on the basis of any of the conclusive proof specified
in sub-rule (3), the Court or the Board or, as the case may
be, the Committee shall in writing pass an order stating the
age and declaring the status of juvenility or otherwise, for
the purpose of the Act and these rules and a copy of the
order shall be given to such juvenile or the person
concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of section 7-A, section 64 of
the Act and these rules, no further inquiry shall be
conducted by the Court or the Board after examining and
obtaining the certificate or any other documentary proof
referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to
those disposed off cases, where the status of juvenility has
not been determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring
dispensation of the sentence under the Act for passing
appropriate order in the interest of the juvenile in conflict
with law."
47. The Hon'ble Supreme Court in Para 12 of the Mahadeo
S/o Kerba Maske (supra) has observed as under:-
"Under rule 12(3)(b), it is specifically provided that only
in the absence of alternative methods described under
Rule 12(3)(a)(i) to (iii), the medical opinion can be sought
for. In the light of such a statutory rule prevailing for
ascertainment of the age of the juvenile in our considered
opinion, the same yardstick can be rightly followed by
the courts for the purpose of the ascertaining the age of a
victim as well."
47.1 In the referred judgment it has been concluded that
the yardstick applicable to determine the age of juvenile can
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be followed even for victim. The determination of age is to be
done by following the procedure laid down in Rule 12(3).
48. In State of M.P. v. Anoop Singh (supra) referred by the
learned APP, the alleged incident is of 03.01.2003 and the
Rules of 2007 of the Juvenile Justice (Care and Protection of
Children) were made applicable. Here in the present case,
the date of incident as per the complaint Exhibit 8 is
16.09.1998. Hence, accordingly, the same Rules could be
made applicable in the present matter.
49. Dr. Mustak Ahmed Gulamrasul was examined as
PW11 at Exhibit 59. He examined the prosecutrix on
22.09.1998, as per the Doctor's testimony, between 2 in the
afternoon to 8 in the evening, he was at Civil Hospital as
Medical Officer and at about 2.40 in the afternoon, Women
Police Constable, Buckle No.6612 from Satellite Police
Station had come with the prosecutrix for medical
examination. The prosecutrix, before the Doctor, gave the
history that 3 months prior, she got acquainted with the boy
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who was visiting the house of their neighbours staying
opposite to them and she fell in love, they used to go to
restaurant and on 16.09.1998, on bike by road, they had
gone to Baroda, where they stayed at a hotel and for once,
they slept together and again came back on 19.09.1998.
50. The prosecutrix has not informed the Doctor about the
earlier incident, which her sister and mother deposed of
going with the accused. The medical examination appears to
be in context with the complaint Exhibit 8 registered on
21.09.1998. On the very next day, the prosecutrix was sent
for medical examination, while according to the
Investigating Officer-PW10-Bharatsinh Waghela, the
prosecutrix had eloped on 17.11.1998 and had appeared
before him at Judge Bungalow Chowky on 15.01.1999.
Thus, if the evidence of the Investigating Officer is to be
considered then, even after the complaint Exhibit 8, again
the prosecutrix had gone with the accused. The father-PW1
stated that he had filed Habeas Corpus petition on
11.01.1999 and the hearing took place on 19.01.1999, but
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prior to the hearing, the prosecutrix had returned back
home. So accordingly, the deposition of the Investigating
Officer-PW10 corroborates with regard to the dates. The
history before the Doctor-PW11 reflects that the prosecutrix
was in love relation with the accused.
50.1 The medical evidence at Exhibit 31 produced by PW6-
Dr. Dipakkumar Champaklal Jadani shows that he had
examined the prosecutrix on 17.01.1999, while Dr. Mustak
Ahmed-PW11 had examined the prosecutrix on 22.09.1998.
Dr. Mustak Ahmed's deposition refers to his case papers
Exhibit 60, where he has deposed that if sexual intercourse
has been established 2-3 months prior, then there were all
possibilities of old Hymen Rupture. In the cross-
examination, he affirmed that if such sexual intercourse has
taken place one month prior, then, the Hymen Rupture as
referred by him could occur. PW11 could not say looking to
the physicality of the prosecutrix that her age would have
been between 18 to 20 years.
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51. PW8-PSI Bhagwansinh Kalusinh Puvar who stated that
on 21.09.1998 at Satellite Police Station between 7.45 to
8.00 in the evening, Gurudevsingh Jasbirsingh Sikh had
come before him and he recorded his complaint as dictated
by him. He then sent the complaint to the PSO, the
witness-PW8 produced the complaint at Exhibit 8 wherein
he identified his as well as Gurudevsingh's signature. He
stated that on the basis of the complaint I-C.R. No.516 of
1998 was registered. The report was placed in evidence at
Exhibit 38. PW8 had recorded the statement of the mother-
Virendra Bakshi-PW2 and the elder sister-Jasmeet-PW3.
Thereafter, the investigation was handed over to PSI D.T.
Waghela. In the cross examination, PW8 stated that on
14.01.99, he had not recorded the statement of the sister-
Jasmeet nor Jasmeet had come on 14.01.99 before him at
the Police Station. The Investigating Officer-PW8 stated
that Jasmeet in her statement dated 22.09.98 has not got it
recorded that the prosecutrix had gone at the house of
accused-Khanjan and once alongwith Khanjan had gone to
Maudi nor had she stated before the Investigating Officer in
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her statement that second time for two months, she stayed
at the house of Khanjan. PW8 stated that nor Jasmeet in
her statement of 22.09.98 had stated that on her asking
prosecutrix said that police had gone for investigation at the
house of Khanjan and at that time, prosecutrix was not
found, and that prosecutrix informed Jasmeet that she was
at the loft and thereafter, once her mother had come to
Gandhinagar at Khanjan's father's house and at that time,
prosecutrix was found in the presence of the witnesses and
that her mother had brought her back home. Nor Jasmeet
had got it recorded in the said statement,of accused and
prosecutrix found at the house in presence of accused's
father, brother and sister-in-law and mother. PW8 further
stated that the prosecutrix had not stated in her statement
dated 22.09.98 of prosecutrix calling her on phone and at
that time, Khanjan was near her and prosecutrix calling
her from Khanjan's mobile phone and as soon as she would
find the peculiar ringing of the telephone, she would know
that it was from the mobile phone, nor has she informed the
police in her statement that she had taken the telephone
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number of the accused from Mehul.
52. PW8 further stated that the eldest sister-Jasmeet has
not stated in her statement that the second time the
prosecutrix had gone, it was accused's mother who had
brought her back home nor has recorded that third time
when prosecutrix had gone, prosecutrix had appeared
before the police and she had gone to take her back.
53. PW8 was further confronted with regard to the
statement of the mother-Virendra Bakshi dated 21.09.98
before him where the Investigating Officer has stated that
the mother has not stated in her statement that accused-
Khanjan was trying to attract the prosecutrix towards her
when she would be attending her tuitions and by alluring
the prosecutrix thereafter, would ask to sit on his bike nor
of the prosecutrix informing the mother of calling her by
phone, nor the mother going at the house of accused the
second time and bringing her back in the presence of the
family members of the accused from Gandhinagar and also
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had not stated that third time the prosecutrix had gone, the
accused's parents as well as other relatives had kept the
prosecutrix with them for about two months, nor the mother
in her statement has stated that once accused had taken
her, therefore, she could say that it was Khanjan who was
taking undue advantage of the minor age of the prosecutrix
and that Khanjan was coming in the neighborhood and
therefore, they were knowing his name.
54. The investigating officer PW8 was again recalled by an
order below Exhibit 70. Where the witness-PW8-
Investigating Officer was asked about the statement of
victim recorded on 22.09.98 which he affirmed and had also
stated of the further statement recorded of the prosecutrix
on 23.09.98, stating that both the days when the statement
of prosecutrix was recorded , accused was not present.
55. The Trial Court enquired from PW8, who stated that
when he was PSI at Satellite Police Station on 21.09.98, at
that time, PSI-Shri. V.P. Waghela was performing his duty
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at Judges Bungalow Chowky and at that time, their Senior
P.I. was Shri. Kulsinh Gohil who orally had asked him to
hand over the investigation to Shri. Waghela.
56. It is required to be recorded here that initially the
charge was framed below Exhibit 1 on 01.03.2001 by
Additional City Sessions Judge under Sections 363 and 366
of IPC and thereafter below Exhibit 47 on 25.05.2001, the
charge was framed under Section 376 of IPC against the
accused.
57. To frame the charge under Sections 363 and 366 of
IPC, it was recorded that on 16.09.98, after 15.45 hours
and thereafter anytime, from the city of Ahmedabad, Azad
Society area, the daughter of the complainant-
Gurudevsingh Jasbirsingh was taken away from the lawful
guardianship of the complainant with an intention to force
her for illicit intercourse outside marriage and for that
purpose, inducing her or having the knowledge of such
possibility had kidnapped her.
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58. The order below Exhibit 47 of framing additional
charge under Section 376 of IPC was challenged before this
High Court by filing Criminal Revision Application No.357 of
2001 but by an order dated 29.11.2001, the Revision
Application came to be withdrawn, hence, the trial
proceeded with the additional charge of Section 376 IPC.
59. The trial Court while recording the conviction has
noted as under :-
"PW10-Bharatsinh Punjubha Vaghela was serving as PSI and
after the crime was registered of the complaint given by PW1
on dt.21-09-1998, as the I-Cr.No.516/98, he investigated
further. This witness has been examined on the aspect that, in
her statement dated 15-01-1999 she had stated, all the facts
she stated on 22-09-1998 were true and on dt.16-09-1998, she
had gone with friend Khanjan with her own volition and her
signatures were also obtained and where she has stated of the
physical torture by her parents. There was absence of accused
when this statement was given by her. He denied the charge
that, this statement had been recorded on getting bribe from
the father of the accused. He also denied the fact that, he had
not adequately investigated into the complaint and merely used
to visit the house of the accused for the name sake and
deliberately misled that investigation. As discussed
hereinabove, the investigation had been done by this witness is
in slip shod manner. Even, if one believes the contradictions
proved by the defence, that she had joined the accused on her
volition, as discussed herein before, she was incapable of
forming her own volition and make up the mind considering
her young age and therefore, it needs to be held that, it was the
accused who had taken away the prosecutrix from the lawful
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guardianship of the parents. As regards the details given by
her on dt.15-01-1999, the Court must be conscious of the fact
that, by that time the writ petition was already filed by the
father of the prosecutrix before the High Court of Gujarat and
therefore, the accused left her at the doorstep of Satellite Police
Station and before the matter comes up on board, on 18-01-
1999 this statement was recorded where there is a clear
attempt on the part of Investigating Officer to favour the
accused because he was not even bothered subsequently to
inquire into the truthfulness of that version. Though there
being no requirement to obtain the signature of the
prosecutrix, the same has been done presumably to make it
sure that, she may not change version after she is out of the
spell of the accused. She continued to live with the parents of
the accused at Gandhinagar and when he was in charge of the
said case, there are specific allegations in the substantive
evidence of the prosecutrix as regards the conduct of this
witness. It is very sad to note that, in a matter which is before
the High Court for bringing a person by way of the writ petition
who is young aged 14 years, such kind of attitude is adopted
by the Investigating Agency to curry favour to the accused.
However, inspite of all these, when the Court has found that,
not only the testimony of the prosecutrix requires to be
believed but, there is ample corroboration from the evidence
discussed herein before for her testimony to sustain the
charges against the accused are required to be held to be
proved. Thus, prosecution proved the charges of abduction
and also of his having had sexual intercourse with the
prosecutrix and immediately after she was taken by the
accused, they had gone to hotel Ghunghat where the accused
had sexual intercourse with her and therefore, ingredients of
all the charges u/s. 361, 366 and S.376 are proved beyond
reasonable doubt."
60. The observations of the learned trial Court Judge is
required to be examined on the basis of evidence on record.
Whether the accused without the consent of the lawful
guardian had taken the victim girl to join him has to be
analysed. The trial court records that on believing the
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contradictions proved by defence that she had joined the
accused on her volition, however was incapable of forming
her own volition and make up the mind considering her
young age and therefore it was held that it was accused who
had taken away the prosecutrix from the lawful
guardianship of parents. The trial court had found the
investigation of PW 10 Bharatsinh Waghela in slip shod
manner. However, though the learned trial Court Judge had
observed the evidence of PW8-the Investigating Officer-
Bhagwansinh Kalusinh Puvar, the learned trial Court
Judge has failed to record from the evidence of PW8 that
PW8 was recalled by an order below Exhibit 70 where the
Investigating Officer was confronted with regard to the
evidence of the victim girl which was dated 22.09.98 and
23.09.98. It appears that the learned trial Court Judge had
not considered the contradiction which has been brought on
record of the statement of the prosecutrix by way of further
cross examination of PW8 on being recalled by the order of
the Court. The victim's statement was recorded by
investigating officer PW8 on 22.09.98 as well as on
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23.09.98. The learned trial Court Judge while appreciating
the evidence had considered the evidence of PW2 and PW3
to observe that though contradictions were brought on
record of the version of PW2 and PW3 but the basic version
inherently remained consistent to observe that PW2 and
PW3 both have stated of accused having lured prosecutrix
and accused had taken away the prosecutrix. The learned
Judge had observed that the statement of prosecutrix dated
22.09.98 recorded that prosecutrix had not stated of
accused having sexual intercourse with her. The statement
of witnesses were recorded by PW8 and not by PW10.
61. The prosecutrix was examined as PW4 which was, in-
camera proceeding. The deposition stated that she was
residing with her father and mother at Azad Society
alongwith her elder sister-Jasmeet. Prosecutrix stated that
at the time of incident both the sisters were studying at The
New Samarth High School located in Manekbaug. Elder
sister was in Standard XI and she was in Standard IX. It
was an English medium School. Her father was in
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transport business and her mother was a house maker.
She was going for tuitions at 6.00 in the evening. Her date
of birth she stated was 16.11.1984.
62. There was IIM Society wherein and just opposite their
house was Sameer Apartments. Her mother and sister used
to come to leave her at the tuition class. The witness stated
that while she was returning back from tuitions, Khanjan
met her, Khanjan told her that he was loving her and asked
her to join him and told her to sit on the bike. Therefore,
she sat on it and thereafter, on the road he told her that
now they were not going back home and went to Ghunghat
Hotel at Gandhinagar where they stayed for two days and
thereafter, to another hotel at Vadodara. She does not
recollect the name of the hotel and thereafter, they came
back from Vadodara and went to the Bank where Khanjan's
mother was serving. The witness stated that from the
Bank, Khanjan's mother came to leave her home.
63. The prosecutrix has not stated about the date on
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which she had gone alongwith the accused and stayed at
Ghunghat Hotel. The witness-PW5-Kantilal Ambalal
Chowdhary was examined who was a partner in Ghunghat
Hotel which is located at Gandhinagar Sector 26 GIDC.
PW5 identified the accused in the Court stating that police
had brought the accused at their place and therefore, he
could identify him. The witness brought the Register in the
Court, verifying the Register, the witness stated that on
16.09.98 there was no entry of Khanjan Nagjibhai Palash in
their Register nor any entry of 17, 18, 19, 20, 21/09/1998
of accused in the Register for Room No.101, and as per the
Register, on 16.09.98, in Room No.101 of their Hotel, Sanjay
Patel and Juhi Rathod had stayed for only one day and the
person who had stayed there, their address was of
Alkapuri, Vadodara.
64. The prosecutrix has not given the specific date of their
stay at Ghunghat Hotel nor does she state in the testimony
before the Court that while staying at Ghunghat Hotel,
accused had established sexual relations with her.
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65. The next date as per the prosecutrix is 17 th November,
1998. She received a call from Khanjan who had asked her
to meet him out and then he said that, 'we should leave'.
Thereafter, for three to four days they stayed in a Hotel at
Gandhinagar and then stayed at Khanjan's house at Sector
No.20 where Khanjan's mother, father, brother and sister-
in-law were residing where they stayed for about two
months.
66. The prosecutrix as a witness could not name the Hotel
and then the evidence is of staying with the family members
of accused for about two months in their house. Her
evidence is that after ten days they had gone to reside at
Khanjan's another mother's home who was Sumanben
Palash of Sukhsar Village, Panchmahal District. Thereafter
they again came back at the Gandhinagar house where they
resided in the presence of the parents of the accused. The
prosecutrix stated that at that time whenever police had
come for their search, they would go to the house of the
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neighbour. Prosecutrix stated that when they were residing
at Gandhinagar, police would not come to search on the
upper floor. While PSI-Shri. Waghela who the witness
stated was at his duty at Satellite Police Station would
come at the Gandhinagar house and after having tea would
leave the house. According to witness, the house of accused
was of ground floor and first floor, which was Government
residential place. Thereafter her parents had filed a case
before Gujarat High Court and Khanjan's father and mother
had advised her to go to Nari Niketan informing that if she
would stay there at their house, their Government service
would be in peril. On 18.01.1999, there was date at the
High Court and prior to that, on 15 th January, Khanjan's
parents had sent her away and Khanjan had come to leave
her at Satellite Police Station. The prosecutrix/witness
stated that near Drive-in, a new Police Station was opened
and PSI-Shri. Waghela was newly shifted there. Witness
stated that when she appeared at the Police Station, PSI
Waghela had taken her report and had asked her where she
was for such a long period. The witness stated that PSI
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Shri. Waghela was knowing that she was at Khanjan's
house at Gandhinagar. The prosecutrix made an allegation
in her deposition that PSI-Shri. Waghela had taken money
from Khanjan's parents.
67. The allegation of bribery has been made by the
prosecutrix against PW10-PSI-Shri. Waghela. The evidence
of the father of the prosecutrix that they had made a search
of the daughter at the house of the accused at Ahmedabad
as well as Gandhinagar. Accused was not found at
Ahmedabad or Gandhinagar. According to PW1-father,
parents of the accused were knowing that they were making
a search of the accused and ultimately, accused was found
from the house of Gandhinagar and therefore, PW1-father
thought that it was the father of the accused who had given
them shelter and that he was deliberately misdirecting them
stating that they were still in search of the accused.
According to the father, his daughter was found from the
house of accused at Gandhinagar, however, prior to that, he
had filed petition in this High Court and as per the father,
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Satellite Police Station had produced the accused before this
High Court and thereafter, accused was sent to jail for
about one month prior to his bail.
68. The evidence of the father thus, notes that it was the
Police of Satellite Police Station who had arrested the
accused and as per the evidence of prosecutrix at Satellite
Police Station, the PSI was PW10-Shri. Waghela.
69. Investigating Officer-PW10-Bharatsinh Punjuba
Waghela who stated that in the year 1998-1999, he was as
PSI at Satellite Police Station and on 21.09.98, the PSI of
their Police Station received the complaint from
Gurudevsingh Jasbirsingh Bakshi and the offence under
Sections 363, 366 and 376 of IPC were registered. For
further investigation, the papers were sent to him which
were registered as I-C.R. No.516/98. The offence was
against Khanjan Nagjibhai Palash. He recorded the
statement of witnesses and thereafter, he had searched for
the prosecutrix and the accused at Sabarmati,
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Gandhinagar, Dahod and other places. The witness-
Investigating Officer stated that the prosecutrix who had
eloped on 17.11.98 had appeared before him on 15.01.99 at
Judge Bungalow Chowky. PW1-the father stated that he
had filed the Habeas Corpus Petition on 11.01.99. The
complaint was given on 21.09.98 while according to the
Investigating Officer, the girl had eloped on 17.11.98 who
appeared on 15.01.99 while according to the father, the date
of hearing in the High Court was 19.01.1999.
70. As per the complaint of the father-Exhibit 8, the
accused had taken the daughter on 16.09.98 and on the
date of the complaint on 21.09.98, at about 3 o' clock in the
evening, accused's mother-Divyaben had left the prosecutrix
at their house.
71. As per Dr. Mustak Ahmed Gulamrasool-PW11, on
22.09.98, he had medically examined the prosecutrix who
had stated before him that she was in love with the accused
and she had come to know him three months prior, they
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were going together in restaurants, and on 16.09.98, on the
bike, they had gone to Baroda by road. There they stayed at
a Hotel, they slept once together and returned back on
19.09.98 at Ahmedabad.
72. PW5-the partner of Ghunghat Hotel had come with the
Register to depose about the check-in and check-out of the
status of the Hotel Room No.101 on 16.09.98. According to
him from 16.09.98 till 21.09.98, none, as the accused or the
prosecutrix had stayed in his Ghunghat Hotel. The
deposition of the prosecutrix and the history given by her to
the Doctor-PW11 finds contradiction. Before the Doctor,
she stated that she was knowing the accused since last
three months, they were in love and she had not stated
before the Doctor that the accused had asked her to join
him and sit on the bike, while she stated that during the
period of three months, they were going to restaurants and
on 16.09.98, they had gone on bike by road to Baroda
where they stayed in a hotel. This evidence of the
prosecutrix before the Doctor would suggest that she on her
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own volition had joined the accused and that there is no
evidence of any enticement from the side of the accused.
The victim was roaming with the accused even prior to
16.09.98. The trial court on appreciation of contradiction
brought on record by the defence came to a conclusion that
the prosecutrix had joined accused on her own volition,
however the trial court was of an opinion that the
prosecutrix at that was incapable of forming her own
volition.
73. The prosecutrix in her testimony had stated that on
17.11.1998, accused had taken her and initially they stayed
for three-four days in a Hotel at Gandhinagar and
thereafter, for two months in the house of the accused. In
accordance to the complaint dated 21.09.98, the prosecutrix
had come back home on that day. Thereafter, again the
prosecutrix went away with the accused. Between the
period from 21.09.98 to 17.11.98, the prosecutrix was in
the lawful guardianship of her parents. During this period,
it appears that no action could be taken against the
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accused. The deposition of PW8-PSI Bhagwansinh Kalusinh
Puvar states that the statement of prosecutrix was recorded
on 22.09.98 and 23.09.98.
74. PW8 stated that in the statement by the prosecutrix on
22.09.98, she had got it recorded that she was staying with
her parents at Smruti Apartments and opposite their
Apartment, Mehul Jaysinh aged about 21 years was
residing in Sameer Apartment, was having his marketing
business in Usmanpura and at his house, Khanjan Palash,
resident of 15, Vanraj Society, Behind RTO Ground, aged
about 21 years was often comin, three months prior she got
acquainted with him who was in 1st year B.A. of Navgujarat
College and since their acquaintance increased, she was in
love relation with him and therefore, she and Khanjan used
to meet at the place near the tuition classes, school and
other places. The prosecutrix had also informed the police
that her sister-Jasmeet was knowing about her relationship.
75. PW8-Investigating Officer further stated that
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prosecutrix has also got it recorded in her statement that
they had reached at about eight in the evening at Hotel
Ghunghat which was near Gandhinagar and booked a
room. Both of them slept in the room and Khanjan had not
misbehaved with her and on the next day, in the evening, at
about 8 o'clock, they left the hotel.
76. The prosecutrix has also got it recorded before PW8
that on the bike with Khanjan, she had gone from
Gandhinagar to Vadodara and in the city, they had their
food at Vadilal Restaurant and stayed in a room at the Hotel
which was beside the Restaurant. She does not recollect
the name of the Hotel nor the area where they stayed for two
days, where too she stated that Khanjan had not
misbehaved or sexually harassed her. Further, it is also
recorded that when she had gone out with Khanjan, during
that period, Khanjan Palash had not behaved with her in an
inappropriate manner or had sexually harassed or had
sexual intercourse with her. PW8 again took her further
statement on 23.09.98 wherein the prosecutrix had affirmed
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the statement as true and proper which was recorded on
22.09.98.
77. In view of this evidence of PW8 who was the
Investigating Officer, the allegation of taking bribe by PW10-
Shri. Waghela and supporting the accused will be falsified
as the victim has not made any allegation against PW8.
The prosecutrix does not deny the statement recorded on
22.09.98 but she alleges that police has not made her read
her statement nor she recollects of the questions put by the
police nor her answer to the police. She further stated that
she does not recollect any of her answers to the police on
22.09.98. She denied the suggestion that she was
deliberately hiding inspite of knowing all the answers.
78. As per the deposition of the prosecutrix, second time
she had gone on 17.11.98 and third time on 10.03.99 and
on both the times, her family members knew about the
incident. She affirms of police recording her statement
thrice but has stated that she does not remember any of
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them.
79. The prosecutrix stated that for the very first time on
16.09.98, Khanjan had sexual intercourse with her and at
that time, her hymen got ruptured and that it has not
happened that prior to that, there was rupture of hymen.
From 16.09.98 to 22.09.98, accused-Khanjan had kept her
with him and during that period, for the first time, had
sexual intercourse.
80. As per the complaint of the father-Exhibit 8, that on
21.09.98 prior to lodging the complaint, accused's mother
had left the prosecutrix at his home at about 3 o' clock in
the afternoon. The prosecutrix has tried to disown her own
statement before the police. The prosecutrix further stated
that she earlier, during the period of 2 years and quarter,
she had never informed anyone about sexual intercourse.
She had denied that on 15.01.99, she had informed the
police in her statement that she had stayed for about one
month with her parents and during that period, often her
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mother was taunting her and was subjecting her to cruelty
and her father after consuming liquor, too was harassing
her, therefore, fed up of all she had thought of committing
suicide. But then instead of dying, she thought of running
away from home and therefore, on 17.01.99, as she was
facing harassment from home which she could not bear and
therefore, packing her clothes in a bag, by informing her
sister-Jasmeet who had come to leave her at Ashram Road
stand along with her friend Mehul, had left home. She has
also got it recorded in her police statement on 15.01.99 that
she from Kalupur Railway Station, sat in Janta Mail and
had gone to Amritsar where she stayed at Gurudwara and
two days prior on 13.01.99, she came back to Ahmedabad
and was staying at Maninagar Gurudwara and thus, on that
day, had appeared at the Police Station.
81. Nothing has come on record by way of verification of
her stay at Amritsar Gurudwara and Maninagar
Gurudwara. Probably it could not be verified since the
Habeas Corpus petition was filed on 11.01.99. The evidence
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of PW10-Shri. Waghela shows that on 15.01.99, the
prosecutrix had appeared before him at the Judge Bungalow
Chowky. He had arrested the accused and had asked for
remand and during the course of remand, PW10 had taken
the accused to Gandhinagar Ghunghat Hotel to verify their
stay in Room No.101. The IO had recorded the statement of
the Manager and thereafter, had made a search with the
accused at Vadodara but could not locate the hotel there.
PW10 had filed the charge-sheet against the accused.
Taking all these facts into consideration and the
circumstances as has emerged on the record, the allegation
of the prosecutrix of PW10 taking bribe from the parents of
the accused and moulding the case as per the convenience
of the accused does not stand proved. It is PW10 who
arrested the accused and had undertaken the necessary
process.
82. PW10 had sent the under-wears of the accused as well
as the prosecutrix for examination. PW10 had also received
the medical certificate of the victim girl produced at Exhibit
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40. The document-Exhibit 19 is the Injury Certificate of the
prosecutrix, who was examined on 22.09.98 was also
procured by PW10.
83. Exhibit 36-the Certificate of birth date from New
Samarth English H/S School dated 12.12.98 is also
procured by PW10 and placed on record. The FSL Report-
Exhibit 17 and Serological Report-Exhibit 18 was placed in
evidence by PW10. In the cross examination, the witness
PW10 stated there was no entry of the stay of the accused in
Room No.101 at Ghunghat Hotel. After 15.01.99, he had
not sent the prosecutrix for medical examination.
84. The charge which was framed on 01.03.2001 was of
taking away the prosecutrix aged about 14 years from the
legal custody of the complainant on 16.09.98 at 15.45
hours with an intent to have illicit intercourse outside
marriage and for that purpose, had enticed her. The further
charge on 25.05.2001 was that on 16.09.98 at 15.45 hours,
the accused took prosecutrix aged about 14 years and
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stayed at at Ghunghat Hotel, Gandhinagar, at that time,
accused had sexual intercourse with the prosecutrix and
committed rape on her and thereafter, three days from
17.11.1998, in the Hotel at Gandhinagar, the accused had
established physical relation with the prosecutrix aged
about 14 years.
85. The offence dated 16.09.1998 was under Sections
363, 366 as well as 376 of IPC.
86. Section 361 and 375 of IPC as stood prior to the year
2013 were as under. Section 361 of IPC explains kidnapping
from lawful guardianship. Section 375 defines rape.
Sections 361 and 375 of IPC are reproduced hereinbelow :-
"361.- Kidnapping from lawful guardianship.-Whoever takes or
entices any minor under sixteen years of age if a male, or
under eighteen years of age if a female, or any person of
unsound mind, out of the keeping of the lawful guardian of
such minor or person of unsound mind, without the consent of
such guardian, is said to kidnap such minor or person from
lawful guardianship.
Explanation.- The words "lawful guardian" in this section
include any person lawfully entrusted with the care or custody
of such minor or other person.
Exception.- This section does not extend to the act of any
person who in good faith believes himself to be the father of an
illegitimate child, or who in good faith believes himself to be
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entitled to lawful custody of such child, unless such act is
committed for an immoral or unlawful purpose."
"375. Rape.- A man is said to commit "rape" who, except in the
case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the six
following descriptions:-
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is
not her husband, and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly.- With her consent, when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance,
she is unable to understand the nature and consequences of
that to which she gives consent.
Sixthly.- With or without her consent, when she is under
sixteen years of age.
Explanation.-Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife,
the wife not being under fifteen years of age, is not rape."
87. The provision under Section 375 IPC makes the act of
sexual intercourse as rape if it was with or without the
consent of a woman under 16 years of age. While Section
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361 IPC makes kidnapping punishable from lawful
guardian, if the female was under 18 years of age. Thus, if a
woman under 18 years of age and above 16 years gives her
consent for sexual intercourse, then such act would not
become a punishable act. While under Section 361 IPC if a
female under 18 years is taken away or enticed from the
lawful guardianship without the consent of such guardian,
then it would be said to be kidnapping such person from
lawful guardianship.
88. In the case of Thakorlal D. Vadgama (supra), as
referred by learned APP, Section 361 IPC has been explained
in Paragraph 10 with the observations as under :-
"The expression used in Section 361 IPC is "Whoever takes or
entices any minor". The words "takes" does not necessarily
connote taking by force and it is not confined to use of force,
actual or constructive. These words merely mean "to cause to
go",, "to escort" or "to get into possession". No doubt it does
mean physical taking, but not necessarily by use of force or
fraud. The word "entice" seems to involve the idea of
inducement or allurement by giving rise to hope or desire in
the other. This can take many forms, difficult to visualise and
describe exhaustively; some of them may be quite subtle,
depending for their success on the mental state of the person
at the time when inducement is intended to operate. This may
work immediately or it may create continuous and gradual but
imperceptible impression culminating after some time, in
achieving its ultimate purpose of successful inducement. The
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two words "takes" and "entices are intended to be read together
so that each takes to some extent its colour and content from
the other. The statutory language suggests that if the minor
leaves her parental home completely uninfluenced by any
promise, offer of inducement emanating from the guilty party,
then the latter cannot be considered to have committed the
offence as defined in Section 361 IPC. But if the guilty party
has laid a foundation by inducement, allurement or threat, etc.
and if this can be considered to have influenced the minor or
weighed with her in leaving her guardian's custody or keeping
and going to the guilty party, then prima facie it would be
difficult for him to plead innocence on the ground that the
minor had voluntarily come to him."
88.1 The words "takes" and "entices" are intended to be
read together. The section as explained would mean that if
the minor leaves her parental home completely
uninfluenced by any promise, offer of inducement
emanating from the guilty party, then the latter cannot be
considered to have committed the offence as defined in
Section 361 IPC. The prosecution has to prove
inducement, allurement or threat etc. to have influenced the
minor or which may have weighed with her to leave her
guardian's custody then the accused cannot be permitted to
plead innocence on the ground that the minor had
voluntarily come to him.
89. Here, the major issue which has been raised by the
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defence was that the prosecutrix was not minor below the
age of 18 years at the time when she had joined the
accused. The prosecutrix has stated her date of birth as
16.11.1984. The first date of incident as per the guardian of
taking the prosecutrix away from the lawful guardianship of
the complainant-father was 16.09.98. Then the age would
be 13years 10 months. The Investigating Officer had
procured the certificate-Exhibit 36 from New Samarth High
School, Ahmedabad. The certificate is dated 12.12.1998.
The witness as referred hereinabove PW7-the Head Clerk
had placed Exhibit 36 in evidence, where he identified the
signature on the certificate of Mahadeviya Saheb, the
Managing Trustee. The certificate-Exhibit 36 is not issued
by the Principal of the school. The signatory of the
certificate has not proved the certificate. The document
Exhibit 36 is not the one, which is maintained in the regular
course of discharge of official duty. Exhibit 35 is the School
Leaving Certificate of the same school - New Samarth High
School, Ahmedabad. Presence of the prosecutrix in the
school was shown for only 33 days out of 98 days in Std.9
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and the time period of her studying in Std.9 is shown since
June, 1998. The last school attended is recorded as Little
Flower High School. The place of birth is Delhi. The date of
birth is shown as 16.11.84. The deposition of PW7-Head
Clerk proves that the details of the entry in the register was
from Little Flower School. However, the witness-PW7 has
not produced the original document received from Little
Flower School, where the prosecutrix had taken her
admission. Nothing is coming on record of her first school,
where she was admitted.
90. In the case of Jarnail Singh v. State of Haryana
reported in (2013) 7 SCC 263, the Hon'ble Supreme Court
was of the view that though Rule 12 of the Juvenile Justice
(Care and Protection of Children) Rules, 2007, was strictly
applicable only to determine the age of the child in conflict
with law, Rule 12 as a statutory provision should be the
basis for determining the age even of a child who is victim of
crime.
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91. As laid down in the case of Jarnail Singh (supra), in
scheme of Rule 12(3) matriculation or equivalent certificates
of the child concerned is the highest rated option. In case
such certificate is available, no other evidence can be relied
upon. In absence of said certificate, Rule 12(3) envisages
consideration of the date of birth entered in the first school
attended by the child. Here the first school attended by the
prosecutrix is Little Flower School. No document of date of
birth certificate from the first school attended has been
produced on record and in absence Rule 12(3) allows
reliance on birth certificate issued by the Corporation or
Municipal Authority. Here in this case, none of the
documents as noted in (i),(ii) or (iii) of Clause (a) of Rule
12(3) has been produced on record to prove the date of
birth. Clause (b) of Rule 12(3) thus provides that in
absence of the aforesaid, the determination of the age could
be made on the basis of medical opinion.
92. Here in this case, Dr. Bharat Shankarlal Dave was
examined as PW9 who was a Medical Officer and on
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23.09.98 was serving at Civil Hospital, Ahmedabad where
from Satellite Police Station, Woman Constable Buckle
No.6612 was brought for examination of age. The Doctor
noted about the height, weight and position of the teeth and
other physiological development of prosecutrix, thereafter,
prosecutrix was sent to Radiology Department. The Doctor
deposed that as per the Radiologist's opinion, the age was
between14-16½ years. The Certificate was given by PW9
who produced it in evidence at Exhibit 40. According to his
own opinion, the age of prosecutrix was between 14 to 15
years. The witness had brought three X-rays taken on
23.09.98 from Radiology Department alongwith X-Ray plate.
He referred to the EPR No., the X-Ray Plate produced at
Exhibit 41 alongwith the Radiologist opinion. The Doctor in
the cross examination stated that he has not noted the age
of the victim as 14-15 years. The Doctor earlier denied but
then agreed that generally the secondary sexual characters
as observed could be of a girl between 18 to 20 years.
93. In the case of Java Mala (supra), the Hon'ble Supreme
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Court while considering the evidentiary value of the
radiological tests determining the age of the person has
confirmed that two years on either side can be accepted
while appreciating opinion of the expert Doctor ascertaining
age of the person on the basis of radiological test.
94. In the case of Rajak Mohammad v. State of H.P.,
reported in (2018) 9 SCC 248, it was held as under:
"4. In view of the above, the focal point for decision would be
the age of the prosecutrix in order to determine as to whether
she was a major so as to give her consent.
5. In this regard, we have considered the evidence and
materials on record. The age of the prosecutrix has been
sought to be proved by the prosecution by bringing on record
the school admission form (Ext. PW 5/A) and the certificate
(Ext. PW 5/B) issued by one Jasdeep Kaur (PW 5), JBT Teacher
of Government School Dungi Plate. PW 5 in her deposition has
stated that the writings in the school admission form (Ext. PW
5/A) are in her handwriting and the signature affixed is that of
the mother of the prosecutrix.
6. In cross-examination, PW 5 had stated that the details
mentioned in Ext. PW 5/A have been obtained from the school
leaving certificate issued by the Government Primary School,
Tambol. The certificate issued by the Government Primary
School, Tambol on the basis of which the details in the
admission form (Ext. PW 5/A) was filled up by PW 5 has not
been exhibited by the prosecution.
7. Nothing hinges on the document exhibited by the
prosecution as Ext. PW 5/B as that is the consequential
certificate issued on the basis of the entries in Ext. PW 5/A.
The mother of the prosecutrix who had allegedly signed Ext.
PW 5/A has not been examined by the prosecution.
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8. On the other hand, we have on record the evidence of Dr
Neelam Gupta (PW 8), a Radiologist working in the Civil
Hospital, Nalagarh who had given an opinion that the age of
the prosecutrix was between 17 to 18 years.
9. While it is correct that the age determined on the basis of a
radiological examination may not be an accurate determination
and sufficient margin either way has to be allowed, yet the
totality of the facts stated above read with the report of the
radiological examination leaves room for ample doubt with
regard to the correct age of the prosecutrix. The benefit of the
aforesaid doubt, naturally, must go in favour of the accused.
10. We will, therefore, have to hold that in the present case the
prosecution has not succeeded in proving that the prosecutrix
was a minor on the date of the alleged occurrence. If that is so,
based on the evidence on record, already referred to, we will
further have to hold that the possibility of the prosecutrix
being a consenting party cannot be altogether ruled out.
11. We will, therefore, have to conclude that the appellant-
accused deserves to be acquitted on the benefit of doubt. We,
consequently, set aside the order of the High Court and the
conviction recorded as well as the sentence imposed and acquit
the appellant-accused of the offences alleged. We further direct
that the appellant-accused be released from custody forthwith
unless his custody is required in connection with any other
case."
95. In the case of Ram Suresh Singh v. Prabhat Singh,
reported in (2009) 6 SCC 681, it was held as under:
"12. The condition laid down in Section 35 of the Evidence Act
for proving an entry pertaining to the age of a student in a
school admission register is to be considered for the purpose of
determining the relevance thereof. But in this case, the said
condition must be held to have been satisfied. An entry in a
school register may not be a public document and, thus, must
be proved in accordance with law, as has been held by this
Court in Birad Mal Singhvi 1988 AIR 1796 but in this case the
said entry has been proved.
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13. Even if we had to consider the medical report, it is now well
known that an error of two years in determining the age is
possible. In Jaya Mala v.Govt. of J&K [(1982) 2 SCC 538 : 1982
SCC (Cri) 502 : AIR 1982 SC 1297] this Court held: (SCC p.
541, para 9)
"9. ... However, it is notorious and one can take judicial
notice that the margin of error in age ascertained by
radiological examination is two years on either side."
14. There cannot furthermore be any doubt whatsoever that
the same standard is required to be applied for the purpose of
Section 35 of the Evidence Act both in civil as also criminal
proceedings, as was held by this Court in Ravinder Singh
Gorkhi v. State of U.P. [(2006) 5 SCC 584 : (2006) 2 SCC (Cri)
632] , stating: (SCC p. 595, para 38)
"38. The age of a person as recorded in the school register or
otherwise may be used for various purposes, namely, for
obtaining admission; for obtaining an appointment; for
contesting election; registration of marriage; obtaining a
separate unit under the ceiling laws; and even for the purpose
of litigating before a civil forum e.g. necessity of being
represented in a court of law by a guardian or where a suit is
filed on the ground that the plaintiff being a minor he was not
appropriately represented therein or any transaction made on
his behalf was void as he was a minor. A court of law for the
purpose of determining the age of a party to the lis, having
regard to the provisions of Section 35 of the Evidence Act will
have to apply the same standard. No different standard can be
applied in case of an accused as in a case of abduction or rape,
or similar offence where the victim or the prosecutrix although
might have consented with the accused, if on the basis of the
entries made in the register maintained by the school, a
judgment of conviction is recorded, the accused would be
deprived of his constitutional right under Article 21 of the
Constitution, as in that case the accused may unjustly be
convicted."
However, the medical opinion rendered in the present case
corroborates the entry made in the register. Admission register
of the school having been proved in accordance with law, we do
not see any reason as to why the same should not be taken
into consideration.
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15. We are not oblivious of the fact that it is difficult to lay
down a law as to whether in a case of this nature, the lower or
the upper age or the average age should be taken into
consideration. Each case depends on its own facts. In Jyoti
Prakash Rai v. State of Bihar [(2008) 15 SCC 223 : (2008) 3
Scale 348] this Court, upon consideration of a large number of
decisions, opined: (SCC pp. 232-33, paras 23-25)
"23. The appellant herein had produced a large number of
documents to prove his age purported to be as on the date of
commission of the crime. The genuineness of the school
certificate and the horoscope had been questioned. The school
certificate produced by the appellant was found to be forged
and fabricated and as a matter of fact a criminal case was
directed to be instituted against the Head of the Institution.
24. The Court, therefore, had no other option but to determine
the age on the basis of the medical reports. Both the medical
reports dated 24-4-2001 and 29-6-2001 opined the age of the
appellant between 18 and 19 years. In terms of the first
medical report, the age of the appellant came to be 18 years 5
months 8 days and in terms of the second medical report, it
came to be between 18 and 19 years. The High Court opined
that the appellant on 1-4-2001 was definitely above 18 years of
age and not below 18 years of age.
25. The courts have considered this aspect of the matter on
earlier occasions also. If, thus, on the basis of several factors
including the fact that school leaving certificate and the
horoscope produced by the appellant were found to be forged
and fabricated and having regard to the two medical reports
the courts below have found the age of the appellant as on 1-4-
2001 to be above 18 years, we are of the opinion that no
exception thereto can be taken."
In the present case, however, the documents produced by
Respondent 1 were not found to be forged, fabricated or
otherwise inadmissible in law. If a document is proved to be
genuine and satisfies the requirements of law, it should be,
subject to just exceptions, relied upon. However, inVimal
Chadha v. Vikas Choudhary [(2008) 15 SCC 216 : (2008) 8
Scale 608] this Court remitted the matter back for
consideration of the age in terms of the rules keeping in view
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the provisions contained in Section 472 of the Code of Criminal
Procedure."
96. In the case of Jyoti Prakash Rai v. State of Bihar,
reported in (2008) 15 SCC 223, it was held as under:
"13. A medical report determining the age of a person has
never been considered by the courts of law as also by the
medical scientists to be conclusive in nature. After a certain
age it is difficult to determine the exact age of the person
concerned on the basis of ossification test or other tests. This
Court in Vishnu v. State of Maharashtra [(2006) 1 SCC 283 :
(2006) 1 SCC (Cri) 217] opined : (SCC p. 290, para 20)
"20. It is urged before us by Mr Lalit that the
determination of the age of the prosecutrix by
conducting ossification test is scientifically proved and,
therefore, the opinion of the doctor that the girl was of
18-19 years of age should be accepted. We are unable to
accept this contention for the reasons that the expert
medical evidence is not binding on the ocular evidence.
The opinion of the Medical Officer is to assist the court
as he is not a witness of fact and the evidence given by
the Medical Officer is really of an advisory character and
not binding on the witness of fact."
In the aforementioned situation, this Court in a number of
judgments has held that the age determined by the doctors
should be given flexibility of two years on either side.
97. In the instant case, as per the radiologist's opinion as
recorded in Exhibit 40, it noted the secondary sexual
characters were well developed, breasts well developed, after
clinical and radiologist's opinion, her age was between 14
(fourteen) to 16½ (sixteen and half) years. In accordance to
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the judgment referred herein above, margin of error in age
ascertained by the Radiologist is two years on either side.
Thus, the age recorded by the Radiologist of 14-16½ years
could be considered as 12-18½ years. The age on the upper
side would come to 18½ years.
98. IPC as it stood then at the time of incident,unlike the
POCSO Act, 2012 does not mandate presumption of
culpable mental state of the accused and the accused does
not have the burden of rebutting the presumption of the
existence of such mental state. Thus, as is in all other
criminal proceeding, the benefit of doubt at all stages goes
in favour of the accused. A question then arises is whether
the lower or the upper age recommended in the Radiologist
test is to be adopted as the age of the prosecutrix. If the
benefit of doubt has to given to the accused in all
circumstances, then it is the higher limit which has to be
taken and benefit has to be extended to the accused as has
been in the cases of Triveniben v. State of Gujarat reported
in (1989) 1 SCC 678 and Maruram v. Union of India
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reported in (1981) 1 SCC 107.
99. In Birad Mal Singhvi v. Anand Purohit reported in AIR
1988 SC 1796, in Paragraph 14 it has been observed as
under :-
"14. ... The date of birth mentioned in the scholars' register has
no evidentiary value unless the person who made the entry or
who gave the date of birth is examined. ... Mere proof the
documents Exts. ... would not tantamount to proof of all the
contents or the correctness of date of birth stated in the
documents."
100. The case put up by the prosecution is of prosecutrix
aged about 14 years was being lured by the accused and
taken away and enticed from the keeping of the lawful
guardian on 16.09.1998. The statement of prosecutrix was
recorded on 22.09.1998, 23.09.1998 and 15.01.1999. The
accused took the defence that the mother of the prosecutrix
had assured marriage with the prosecutrix. The Habeas
Corpus petition was filed on 11.01.1999. The evidence
which came on record is that the prosecutrix had left home
thrice. The father as complainant has no knowledge, about
the prosecutrix. From the evidence of the elder sister and
the mother, it transpires that they were knowing of
prosecutrix's relation with the accused.
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101. The complaint Exhibit 8 is dated 21.09.1998. The
prosecutrix was medically examined by PW11-Dr. Mustak
Ahmed Gulamrasul on 22.09.1998. The Doctor had
observed old hymen tear. The history before the Doctor
reflects of love relation and of prosecutrix openly moving
around with the accused and even visiting restaurant. The
history also depicts that on 16.09.1998 the prosecutrix on
her own had gone with accused on his bike. It is not that
accused had asked her to sit on the bike with the intention
to take her to some hotel for any illegal sexual intercourse.
The medical examination on 22.09.1998 does not show of
any physical force exerted by accused on the prosecutrix.
The pubic hair and the hair of the underarms were well
developed, even the breast were found developed.
102. The evidence has come that even prior to the
complaint-Exhibit 8, prosecutrix had gone with the accused
and then on 16.09.1998 and even after the complaint,
prosecutrix had eloped with the accused.
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103. The prosecutrix till her statements on 22.09.1998 and
23.09.1998 which were recorded by PW8-Investigating
Officer had not made any allegation of sexual intercourse by
the accused. In the Court during the trial, she disowned
both her statements. However, the contradiction could be
proved by the evidence of PW8, who was recalled for that
purpose.
104. The trial Court too had believed that the prosecutrix
had joined the accused on her own volition, however found
prosecutrix incapacitated to form opinion because of her
age. The father in the complaint-Exhibit 8 got recorded the
age of the prosecutrix as 14 years while in the deposition,
the father stated the age of prosecutrix as 16 years.
Crucially to be noted that the during this period of
elopement, which was earlier to the date of complaint, the
school of the prosecutrix gets changed. As noted
hereinabove, prosecutrix appears to have started her
schooling in The New Samarth English High School in June
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1998. The actual days of attending school, was recorded as
33 days out of 98 days, which had not been proved by the
witness PW7-the Head Clerk by producing attendance
register. The School Leaving Certificate-Exhibit 35 is dated
25.11.1998. In view of the analysis of the evidence earlier
recorded hereinabove, no record of Little Flower High School
has been produced and proved. The condition laid down in
Section 35 of Indian Evidence Act for proving an entry
pertaining to the age of a student in a School Admission
Register is to be considered for the purpose of determining
the relevance thereof. An entry in a school register may not
be a public document and they must be proved in
accordance with law. Here the witness-Head Clerk did bring
the Register of admission in Court but failed to produce
certified copy of the relevant entry. Further, in absence of
record from Little Flower High School, the documents of The
New Samarth English High School becomes doubtful in
wake of the fact that the admission and school leaving date
on Exhibit 35, are almost nearing the date of elopement and
complaint.
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105. The Investigating Officer-PW10 Shri. Waghela who
procured Exhibit 35 and Exhibit 36, was required to further
investigate, and could have recorded the statement of the
Principal of Little Flower High School, the school first
attended by the prosecutrix. It was the duty of the
Investigating Officer to bring the best evidence on record to
place the truth. It is not that the Investigating Officer has
to merely secure and collect evidence, but has to investigate
the base and authenticity of the evidence. The real evidence
as contemplated under Rule 12(3) of JJ Rules, 2007 could
have been brought on record, had PW10 further investigated
the evidence at Little Flower High School.
106. The evidence of a victim of sexual assault stands
almost on par with the evidence of an injured witness, and
such evidence of the witness who has sustained injury in
the occurrence is considered to be a good witness, in the
sense, that she is least likely to shield the real culprit, the
evidence of victim of a sexual offence is entitled to gain
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weight even in absence of corroboration as noted in State of
Punjab v. Gurmit Singh reported in (1996) 2 SCC 384 and
reiterated in Ranjit Hazarika v. State of Assam reported in
(1998) 8 SCC 635. The relevant observation follows as :-
"Corroborative evidence is not an imperative component of
judicial credence in every case of rape. Corroboration as a
condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of
prudence under given circumstances. It must not be
overlooked that a woman or girl subject to sexual assault is not
an accomplice to the crime but is a victim of another person's
lust and it is improper and undesirable to test her evidence
with a certain amount of suspicion, treating her as if she were
an accomplice. Inferences have to be be drawn from a given
set of facts and circumstances with realistic diversity and not
dead uniformity lest that type of rigidity in the shape of rule of
law is introduced through a new form of testimonial tyranny
making justice a casualty. Courts cannot cling to a fossil
formula and insist upon corroboration even if, taken as a
whole, the case spoken of by the victim of sex crime strikes the
judicial mind as probable." (emphasis in original).
107. The reliance on the sole testimony of the victim can be
made provided it inspires confidence. Here the conduct of
the prosecutrix becomes important to be examined, her
eloping frequently with the accused, speaks volumes of her
relation with the accused. The criminal intent of the
accused has not been proved. The evidence of age of
prosecutrix has become doubtful. The prosecutrix was
competent at the relevant time to make her own decision.
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108. In the case of Raju and Others v. State of Madhya
Pradesh reported in (2008) 15 SCC 133, it was held as
under :-
"10. The aforesaid judgments lay down the basic principle that
ordinarily the evidence of a prosecutrix should not be suspected and
should be believed, more so as her statement has to be evaluated on a
par with that of an injured witness and if the evidence is reliable, no
corroboration is necessary. Undoubtedly, the aforesaid observations
must carry the greatest weight and we respectfully agree with them,
but at the same time they cannot be universally and mechanically
applied to the facts of every case of sexual assault which comes before
the court.
11. It cannot be lost sight of that rape causes the greatest distress
and humiliation to the victim but at the same time a false allegation
of rape can cause equal distress, humiliation and damage to the
accused as well. The accused must also be protected against the
possibility of false implication, particularly where a large number of
accused are involved. It must, further, be borne in mind that the
broad principle is that an injured witness was present at the time
when the incident happened and that ordinarily such a witness would
not tell a lie as to the actual assailants, but there is no presumption
or any basis for assuming that the statement of such a witness is
always correct or without any embellishment or exaggeration.
12. Reference has been made in Gurmit Singh case [(1996) 2 SCC 384
: 1996 SCC (Cri) 316] to the amendments in 1983 to Sections 375
and 376 of the Penal Code making the penal provisions relating to
rape more stringent, and also to Section 114-A of the Evidence Act
with respect to a presumption to be raised with regard to allegations
of consensual sex in a case of alleged rape. It is however significant
that Sections 113-A and 113-B too were inserted in the Evidence Act
by the same amendment by which certain presumptions in cases of
abetment of suicide and dowry death have been raised against the
accused. These two sections, thus, raise a clear presumption in
favour of the prosecution but no similar presumption with respect to
rape is visualised as the presumption under Section 114-A is
extremely restricted in its applicability. This clearly shows that
insofar as allegations of rape are concerned, the evidence of a
prosecutrix must be examined as that of an injured witness whose
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presence at the spot is probable but it can never be presumed that
her statement should, without exception, be taken as the gospel
truth. Additionally, her statement can, at best, be adjudged on the
principle that ordinarily no injured witness would tell a lie or
implicate a person falsely. We believe that it is under these principles
that this case, and others such as this one, need to be examined."
109. The Leaving Certificate though becomes admissible
evidence but that itself would not be sufficient to prove the
age of the prosecutrix unless the material on which the age
was recorded would be proved. The corroborative piece of
evidence to believe the leaving certificate had not been
brought on record. This loophole in investigation certainly
will extend the benefit to the accused. As analysed before
considering the ratio laid down in Rajak Mohammad
(supra), the age established by radiological examination
might not be precise, and sufficient margin of error must be
allowed. The upper estimated age can be considered since
the benefit of doubt can be extended to the accused. Thus,
accordingly prosecutrix's age at the time of complaint-
Exhibit 8 can be considered above 18 years, thus failing
prosecution, to draw the ingredients of Sections 361 and
375 of IPC against the accused to prove the case under
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Sections 363, 366 and 376 of IPC.
110. On the basis of analysis of evidence and the principle
of law ruled in the referred and relied upon judgments with
the relevant provisions of law, the Appeal succeeds.
111. In the result, the judgment and order dated
26.08.2002 passed by the learned Additional Sessions
Judge, Ahmedabad, Court No.10 in Sessions Case No.140 of
2000 is set aside. The appellant is acquitted of all the
charges levelled against him. Bail and bail bond stands
discharged. Record and proceedings be sent to the
concerned Trial Court forthwith.
Sd/-
(GITA GOPI,J)
CAROLINE, PANKAJ & MAULIK / DB # 1
