BUDHIYO CHHAGANBHAI VAGHRI v. STATE — 1991 DIGILAW 57 (GUJ)

KARIA, J. ( 1 ) THE appellant-accused has been convicted for the offences punishable under Secs. 376, 366a and 363 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 500/, in default of payment of fine to suffer rigorous imprisonment for a further period of three months, for the offence punishable under Sec. 376 of the Indian Penal Code, and to suffer rigorous imprisonment for two years and to pay a fine of Rs. 200. 00, in default of payment of fine to suffer rigorous imprisonment for a further period of Penal Code, by the learned Sessions Judge, Rajkot, in Sessions Case no. 78 of 1989. The learned Sessions Judge, however, did not pass any order regarding sentence for the offence punishable under Sec. 363 of the indian Penal Code, though he convicted the accused for the said offence. The sentences awarded were ordered to run concurrently. The appellantaccused has challenged the said judgment and order of conviction and sentence in the present appeal. ( 2 ) THE prosecution case is that on 2/04/1989 at about 10-30 p. m. the accused took and enticed P. W. 5 Bhavna Exh. 24, who is the minor daughter of P. W. 6 Gangaram Lilaram Exh. 26 and P. W. 7 Kasturiben Gangaram Exh. 29, out of the keeping of the lawful guardianship of her said parents and thereby committed an offence punishable under Sec. 363 of the Indian Penal Code. It is also the prosecution case that the accused enticed prosecutrix Bhavna, aged 13 years at the time of the incident, to go from Rajkot to Godhra, Surat, Kheda and to do any act with intent that the minor girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person and that the accused committed rape on prosecutrix Bhavna, who was under 16 years of age, without her consent, at Kheda, on or about 3/04/1989 and thereby the accused committed offences punishable under Secs. 366a and 376 of the Indian Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . ( 3 ) THE prosecution, in order to prove the age of the prosecutrix Bhavna, examined P. W. 1 Dr. 366a and 376 of the Indian Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . ( 3 ) THE prosecution, in order to prove the age of the prosecutrix Bhavna, examined P. W. 1 Dr. Vijay Arjanbhai Nagrecha at Exh. 10 and also P. W. 3, Dr. Kamlesh Prabhudas Domadiya at Exh. 22, who was working as a radiologist at the relevant time in the Civil Hospital, Rajkot, Several radiological tests were taken in respect of the prosecutrix Bhavna. The report of the radiologist is at Exh. 12. The X-ray plate is at Exh. 13 and the medical report is at Exh. ( 4 ) IN view of this oral and documentary medical evidence, the learned Sessions judge has come to the conclusion that the said girl Bhavna would be within the age-range of 11 and 12 years. ( 5 ) BESIDES the aforesaid medical evidence, the prosecution has also examined Urmilaben Vajeshankar Dave, who was the Assistant Teacher in primary School No. 10 at Rajkot at the relevant time, at Exh. 15. She has produced the documentary evidence at Exhs. 12, 18 and 19 showing the date of birth of the prosecutrix Bhavna as 1/01/1976. Exh. 19 is the Vali Form duly filled in by P. W. 6 Gangaram showing the date of birth of the prosecutrix Bhavna as 1/01/1976. Exh. 28 is the age certificate in respect of the prosecutrix Bhavna, issued by the Rajkot Municipal corporation, showing that the prosecutrix Bhavna was born on 23/03/1976. Therefore, on the basis of the medical evidence and the school certificates, the prosecution has proved beyond doubt that the prosecutrix Bhavna was a minor at the time of the incident, as she had not completed 16 years of age. No doubt, there is discrepancy with regard to the date of birth of prosecutrix Bhavna in the certificates. Exh. 17, 18 and 19 show the date of birth of the prosecutrix Bhavna as 1/01/1976 and Exh. 28 shows her date of birth to be 23/03/1976. In any view of the matter, the prosecutrix Bhavna was aged 13 years on 2/04/1989, when the incident took place. ( 6 ) THE certificate at Exh. Exh. 17, 18 and 19 show the date of birth of the prosecutrix Bhavna as 1/01/1976 and Exh. 28 shows her date of birth to be 23/03/1976. In any view of the matter, the prosecutrix Bhavna was aged 13 years on 2/04/1989, when the incident took place. ( 6 ) THE certificate at Exh. 28 showing the date of birth of prosecutrix Bhavna as 23/03/1976 is conclusive evidence to prove that Bhavna was a minor, as she had not completed the age of 16 years at the time of the incident. It was contended on behalf of the appellant-accused that the certificate Exh. 28 issued by the Rajkot Municipal Corporation could not be admissible in evidence for the reason that its author was not examined by the prosecution. Sec. 35 of the Indian Evidence Act provides that an entry in any public or other official book, register or record stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official, or by any other person in performance of a duty a specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. Therefore, the age certificate of prosecutrix Bhavna at Ex. 28, being a public document, is admissible in evidence. The registers of births and in the Municipal Corporation are maintained as per the law relating thereto. Therefore, the entry regarding the date of birth of prosecutrix Bhavna has been made by the concerned official in discharge of his official duties in the Municipal Corporation and the certified copy of such entry is admissible under Sec. 35 of the Indian Evidence Act. It is not necessary to examine the officer who recorded the entry. There is, therefore, no merit in this contention. . . . . . . . . . . . . . . . . . . . . . . . ( 7 ) MR. H. A. Raichura, the learned Advocate for the appellant-accused, has fairly conceded that the finds and conclusions of the learned Sessions judge are unassailable Mr. Raichura, therefore, confined his arguments to the quantum of sentence only. He contended that the prosecutrix Bhavna was ready and willing to accompany the accused. . . . . . . ( 7 ) MR. H. A. Raichura, the learned Advocate for the appellant-accused, has fairly conceded that the finds and conclusions of the learned Sessions judge are unassailable Mr. Raichura, therefore, confined his arguments to the quantum of sentence only. He contended that the prosecutrix Bhavna was ready and willing to accompany the accused. The prosecutrix being under the age of 16 years of age, her willingness or consent was immaterial Sec. 376 of the Indian Penal Code provides punishment for the offence of rape, except in the cases provided for in sub-sec. (2) thereof, for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years. The case of the present accused does not fall in any of the clauses of sub-sec. (2) of sec. 376 of the Indian Penal Code. However, the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. In the present case, the age of the accused at the time of recording his further statement under Sec. 313 of the Code of Criminal Procedure, 1973, was 20 years. He would, therefore, reasonably be aged about 19 years at the time of commission of the crime. The is the first offence of the accused. Moreover, considering the social set up in which the accused and the prosecutrix have brought up and other relevant circumstances, it would be the interest of justice to award lesser sentence than rigorous imprisonment for seven years. Having regard to the overall facts and circumstances and circumstances and evidence of the case we are of the opinion that the sentence of seven years rigorous imprisonment awarded to the accused by the trial Court for the offence punishable under Sec. 376 of the Indian penal Code is harsh and excessive. ( 8 ) IN the case of Himat Popatlal Raval v. State of Gujarat, 1983 GLH 264 : ( 1983 (1) GLR 268 ), the facts and circumstances from the view-point of which sex offences are to be considered, are stated. Six categories have been classified for the purpose of consideration and award of sentence for such sex sentence. ( 8 ) IN the case of Himat Popatlal Raval v. State of Gujarat, 1983 GLH 264 : ( 1983 (1) GLR 268 ), the facts and circumstances from the view-point of which sex offences are to be considered, are stated. Six categories have been classified for the purpose of consideration and award of sentence for such sex sentence. ( 9 ) IF the case falls in category No. 6 above, then it does not requires to be treated on per with the case of sexual offences narrated in the above mentioned 1 to 5 categories. Having regard to the facts and circumstances of the present case we are of the opinion that it would meet the ends of justice, if a lenient view is taken while imposing sentence, inasmuch as the appellantaccused has committed the offence in his youthful exuberance. The present case cannot be put on par with others where the accused may be called sex-maniacs who are out to satisfy their lust or sexual hunger any how. Having regard to all the facts and circumstances of the case, we are of the opinion that ends of justice would be met if the sentence is reduced to two years rigorous imprisonment (instead of seven years rigorous imprisonment as awarded by the learned Sessions Judge) for the offence punishable under Sec. 376 of the Indian penal Code. ( 10 ) THE learned Sessions Judge has awarded a sentence of rigorous imprisonment for two years, for the offence punishable under Sec. 366a of the Indian Penal Code. Section 366a contemplates that whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extended to ten years and shall also be liable to fine. In the present case, there is no charge and evidence to the effect that the accused had forced or seduced the prosecutrix to have illicit intercourse with another person. The learned Sessions Judge is, therefore, in error in coming to the conclusion that the accused committed an offence punishable under Sec. 366a of the Indian Penal Code. Mr. In the present case, there is no charge and evidence to the effect that the accused had forced or seduced the prosecutrix to have illicit intercourse with another person. The learned Sessions Judge is, therefore, in error in coming to the conclusion that the accused committed an offence punishable under Sec. 366a of the Indian Penal Code. Mr. R. R. Tripathy, the learned Additional Public Prosecutor, appearing on behalf of the respondent- state, fairly conceded that there is no evidence to prove the charge in respect of force or seduction by the accused to illicit intercourse with another person. In the prosecution case, it is of course stated that the prosecutrix Bhavan was made to sit in a rickshaw by the accused, budhiya, and his friends, Bhupat and Jagu. However, the said Bhupat and jagu were not the accused before the trial Court, nor it was alleged that the prosecutrix Bhavan was forced or seduced to illicit intercourse with either Bhupat or Jagu. Therefore, the conviction and sentence for the offence punishable under Sec. 366a of the Indian Penal Code cannot be sustained in this case, inasmuch as there is no allegation or evidence against the accused that he induced the girl under 18 years of age to go from a place with intent that the girl may be, or knowing that it is likely that she will be, forced, or seduced to illicit intercourse with another person. We therefore, set aside the conviction and sentence imposed on the accused for the offence punishable under Sec. 366 A of the Indian penal Code by the learned Sessions Judge. ( 11 ) THE learned Judge has convicted the accused for the offence punishable under Sec. 363 of the Indian Penal Code. However, no sentence is awarded to the accused for the said offence. In para 47 of the judgment under appeal, it is observed that since the accused is sentenced for the offences punishable under Secs. 366a and 376 of the Indian Penal Code, it is not necessary to impose any separate sentence for the offence punishable under Sec. 363 of the indian Penal Code. This is not just and legal. Relevant part of Sec. 31 of the code of Criminal Procedure, 1973 read as under : "31. 366a and 376 of the Indian Penal Code, it is not necessary to impose any separate sentence for the offence punishable under Sec. 363 of the indian Penal Code. This is not just and legal. Relevant part of Sec. 31 of the code of Criminal Procedure, 1973 read as under : "31. Sentence in cases of conviction of several offences at one trial : (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Sec. 71 of the Indian Penal Code (45 to 1860) sentence him for such offences, to the several punishments prescribed therefore, which such court is competent to inflict; such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. ( 12 ) ). Section 71 of the Indian Penal Code provides that where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punishable with the punishment of more than one of such of his offences, unless it be so expressly provided. In the instant case, the offences of abduction and rape are different and distinct offences that are proved against the accused. ( 13 ) THE term "may" occurring in the aforesaid Sec. 31 of the Code of criminal Procedure should be read as "shall". In a case in which Sec. 71 of the Indian Penal Code does not come into play, there must be separate sentence for all the offences for which the accused is found guilty. The Court has no discretion to pass only one sentence when the accused is convicted of several offences. It is illegal to refuse to pass a sentence on conviction. It is the duty of the Court to pass separate sentence for each offence. The law does not encourages conviction of a person for an offence without a sentence being imposed therefore. Therefore, the order of not awarding sentence to the appellant-accused for the offence punishable under Sec. 363 of the Indian Penal Code rendered by the learned Sessions Judge is illegal. ( 14 ) A reference be made in this connection to the case of Jayaram vithobha and Anr. v. State of Bombay, AIR 1956 SC 146 . Therefore, the order of not awarding sentence to the appellant-accused for the offence punishable under Sec. 363 of the Indian Penal Code rendered by the learned Sessions Judge is illegal. ( 14 ) A reference be made in this connection to the case of Jayaram vithobha and Anr. v. State of Bombay, AIR 1956 SC 146 . The Supreme court held that when there is a conviction for more offences than one and there are distinct findings in respect of each of them, a separate sentence will be awarded for each offence. In the said case, the accused was prosecuted under Secs. 4 (a) and 5 of the Bombay Prevention of Gambling Act. The presidency Magistrate, who tried the case, convicted the accused under both the sections and sentenced him under Sec. 4 (a), but did not award any separate under Sec. 5 of the said Act. The High Court, in revision, set aside the conviction under Sec. 4 (a), but confirmed the conviction under Sec. 5 and awarded a sentence therefor. It was held by the Supreme Court that when the High Court set aside the conviction under Sec. 4 (a) and affirmed that under Sec. 5, there are two distinct findings, one of reversal and another of affirmance and there was no question of alteration. In view of that matter, the Supreme Court held that when a conviction is affirmed in appeal but no sentence had been awarded by the trial Court, the award of a sentence is consequental on and incidental to the affirmance of the conviction and it is a just and proper order to be passed under the law. In the instant case, we are supported in the aforesaid view by the following observation of the Supreme Court in Jayaram Vithobhas case (supra) :"when a person is tried for an offence and convicted, it is the duty of the Court to impose on him such sentence, as is prescribed therefor. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor. . . . . . . " ( 15 ) IN the result, the appeal is partly allowed. the conviction of the appellantaccused for the offence punishable under Sec. 376 of the Indian Penal Code is upheld, but the sentence is reduced to rigorous imprisonment for two years and a fine of Rs. 500. . . . . . . " ( 15 ) IN the result, the appeal is partly allowed. the conviction of the appellantaccused for the offence punishable under Sec. 376 of the Indian Penal Code is upheld, but the sentence is reduced to rigorous imprisonment for two years and a fine of Rs. 500. 00, in default of payment of fine to suffer further rigorous imprisonment for three months (instead of rigorous imprisonment for seven years and a fine of Rs. 500. 00, in default of payment of fine, further rigorous imprisonment for three months as awarded by the learned Sessions Judge) for the said offence. (Rest of the Judgment is not material for the Reports.) .