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2006 DIGILAW 784 (GUJ)

BIPINKUMAR HARIBHAI KUMBHANI v. STATE OF GUJARAT

2006-12-04

M.D.SHAH, R.P.DHOLAKIA

body2006
M. D. SHAH, J. ( 1 ) THE present appeal is filed against the judgment and order dated 18th May, 2006 passed by the learned Sessions Judge, junagadh, in Sessions Case no. 68/1996 by which the learned Sessions Judge convicted the present appellant-accused for the offence punishable under Section 376 of the Indian Penal Code and sentenced him to suffer R. I. For 10 years and imposed fine of Rs. 5000/-, in default, of payment of fine to suffer further S. I. for one year. It was further ordered that the amount of fine of rs. 5000/-, if paid, be given to the victim as compensation. ( 2 ) IN brief, it is the case of the prosecution that the incident in question took place on December 19,1995 at 1. 00 p. m. while the complainant was watering the sugar-cane plantation in her field. At that time, suddenly the present appellant-accused came from behind the complainant caught hold of her, dragged her and against her will raped her. It is the say of the complainant that the accused appellant then took out a knife, pointed out the same at her and threatened to kill her if she discloses regarding the incident to anyone. Due to the incident as her clothes were stained she washed her clothes. When her father and mother came to the field, she informed them about the incident and thereafter, she lodged complaint against the present accused at Mendarda Police Station whereupon offence was registered, investigation was carried out by PSI mansing Pratap Mahida and the accused came to be arrested. During the investigation, he recorded the statement of concerned persons, sent the complainant tor medical examination at the hospital, collected the medical evidence, drew necessary Panchnamas and sent the muddamal to Forensic Science Laboratory for chemical analysis. Thereafter as the investigating Officer PSI Shri Mahida was transferred the investigation was taken over by PSI R. H. Jadega who filed charge-sheet against the present appellant-accused. Thereupon, the learned Judicial Magistrate, first Class, passed an order to commit the case to the Court of Sessions under Section 209 of the Criminal Procedure Code as the offence in question was exclusively triable by the Court of Sessions which was numbered as Sessions Case no. 68 of 1996. Thereupon, the learned Judicial Magistrate, first Class, passed an order to commit the case to the Court of Sessions under Section 209 of the Criminal Procedure Code as the offence in question was exclusively triable by the Court of Sessions which was numbered as Sessions Case no. 68 of 1996. The learned Sessions Judge, Junagadh, framed charge for the offence punishable under Sections 376, 506 (2) of the Indian penal Code and also framed charge under section 135 of the Bombay Police Act against the present appellant-accused. The present appellant denied the charges, and hence, to prove the charges against the present appellant-accused, the prosecution has examined 12 witnesses and also produced several documentary evidence. Thereafter, further statement of the appellant-accused under Section 313 of the criminal Procedure Code was recorded by the learned Sessions Judge wherein the present appellant accused stated that because of enmity a false case is filed against him and he also stated that he does not want to examine any witness or give deposition on oath. After hearing the learned Advocates of both the parties and considering the evidence on record both documentary as well as oral, as also the written arguments submitted by the Public prosecutor vide Exh. 69 and the written arguments submitted by the learned advocate for the accused, the learned sessions Judge held the accused guilty of the offence under Section 376 of the criminal Procedure Code and passed the judgment and order of conviction and sentence as stated in para-1 of this judgment. ( 3 ) LEARNED Advocate Mr. J. B. Mehta for the appellant-accused submitted that the learned Sessions Judge has failed to appreciate the oral as well as documentary evidence on record in its true perspective and arrived at a wrong conclusion. It is also submitted by learned Advocate Mr. Mehta that the learned Sessions Judge has materially erred in holding that at the time of incident, the victim was below the age of 16 years and wrongly held that at the time of incident the victim was minor and that she was aged 14 years and 2 months at the time of incident. It is also argued by the learned Advocate that there is contradiction between the complaint of the complainant and her statement before the police as also her evidence on oath before the learned judge. It is also argued by the learned Advocate that there is contradiction between the complaint of the complainant and her statement before the police as also her evidence on oath before the learned judge. According to the learned Advocate, in spite of that, relying upon such evidence, the learned Sessions Judge has erred in convicting the appellant-accused. It is also argued by the learned Advocate Mr. Mehta that the medical evidence does not support the case of the prosecution and the story put forward by the prosecution is not at all believable and the appellant-accused is wrongly convicted. Lastly, he submitted that taking into consideration the entire evidence on record, the sentence awarded by the learned Sessions Judge is very excessive and prayed for reducing the sentence passed against the appellant-accused. ( 4 ) THE learned Public Prosecutor Mr. Sunit Shah submitted that the deposition of the prosecutrix is trustworthy and does not suffer from any infirmity. Moreover, the evidence of prosecutrix is corroborated by the medical evidence on record and hence relying upon the entire evidence on record the learned Sessions Judge has rightly passed the judgment and order of conviction and sentence against the accused which is legal and proper and does not require any interference, and hence, the appeal deserves to be dismissed. ( 5 ) IN light of the rival submissions of both the learned Advocates, let us appreciate the evidence on record. The learned Advocate for the appellant-accused took us through the evidence of PW 3. the prosecutrix at Exh. 20. She deposed before the Court after a lapse of eight years of the incident wherein she has categorically stated that when the incident took place she was alone in the field. She has narrated the manner in which the incident had happened wherein she specifically stated that without her consent and against her will the appellant-accused had forcefully committed rape on her. As stated earlier, the deposition of the victim having been recorded after a lapse of 8 years of the incident, naturally some minor discrepancies and/or contradictions are bound to occur but as regards the factum of rape is concerned there is no contradiction between the deposition on oath of the prosecutrix and the complaint. Nothing is also borne out from the cross-examination which falsifies the evidence of prosecutrix. Nothing is also borne out from the cross-examination which falsifies the evidence of prosecutrix. While appreciating the evidence of the prosecutrix, it is found that her evidence is quite natural reliable and trustworthy and there is no reason to discard her evidence on the basis of minor contradictions. It is to be noted that in mofusil places in India, at the cost of her chastity no lady would like to falsely cook up the story of rape on herself. There is nothing on record except the bare suggestion regarding the prosecutrix bearing any enmity with the appellant-accused or that there existed any strained relation between the prosecutrix and the appellant-accused so that the prosecutrix could go to the extent of lodging a false complaint against the appellant-accused. As far as the evidence regarding intercourse is concerned, it is crystal clear from the FSL report produced at Exh. 61 that semen of a male person was found from the vagina, pubic hair of the victim (prosecutrix) and the peticoat worn by the victim at the time of the incident. Reading the deposition of pw 1 Dr. Ramesh kumar Mansukhlal Sodha it is found that the hymen of the prosecutrix was ruptured centrally and fragments were seen on vaginal wall which supports the case of the prosecutrix. No lady would prefer to let the real culprit scot free and involve an innocent person in such a crime, especially when, there is nothing on record to show the existence of enmity or strained relations between the prosecutrix and the appellant-accused. Viewing the matter from this angle, it can safely be concluded that the accused alone has committed rape on the prosecutrix and the prosecution has proved the case beyond all reasonable doubt for the offence under Section 376, IPC against the appellant-accused. ( 6 ) AS regards the age of the prosecutirix is concerned, the prosecution has examined pw 10. lanakrai Dhirajlal Bhatt at Exh. 30 who has been working as Talati-cum-Mantri in Ambla Gram Panchayat. The record shows that this Talati-cum Mantri had come with the original birth register and in this register at entry no. 16 the birth date of the prosecutrix daughter of karsanbhai Popatbhai is recorded as 24th october, 1981 and the date of the entry is shown as 26-10-1981. The true copy of the said entry is produced vide Exh. The record shows that this Talati-cum Mantri had come with the original birth register and in this register at entry no. 16 the birth date of the prosecutrix daughter of karsanbhai Popatbhai is recorded as 24th october, 1981 and the date of the entry is shown as 26-10-1981. The true copy of the said entry is produced vide Exh. 38 which clearly shows that the date of birth of the prosecutrix at the time of the incident was 24th October. 1981. The prosecution has also examined PW 1 1 Bhikalal Lalji at exh. 41 who is Principal of the Primary school in Ambla. He has produced the zerox copy of the School Leaving certificate of the prosecutrix at Exh. 43 which shows that the date of birth of the prosecutrix is 14th August. 1981. The learned Sessions Judge has elaborately discussed the evidence regarding the age of the prosecutrix and rightly held that there is only a difference of two months between the age of the prosecutrix recorded in the birth register and the School Leaving certificate. In villages it is likely that for obtaining admission at schools, the parents do not give the exact date of birth. In that view of the matter, it is clear that Exh. 38 is a genuine document and that the age of the prosecutrix was 14 years and 2 months, i. e. below 16 years, and therefore, she was minor at the lime of the incident. More so when the evidence of the prosecutirix finds corroboration from the deposition of the principal of the Primary School as also the school Leaving Certificate produced on record the Trial Court has rightly held that the prosecutrix was a minor at the time of the incident. ( 7 ) AS far as the quantum of sentence is concerned, as can be seen from what is discussed above, at the time of incident, the prosecutrix was 14 years and 2 months old and the appellant-accused was 27 years old. Thus, considering the fact that the prosecutrix was a minor at the time of incident, the offence under Section 376. IPC stands established against the appellant-accused, and therefore, he is not entitled to the benefit of reduction in sentence. Thus, considering the fact that the prosecutrix was a minor at the time of incident, the offence under Section 376. IPC stands established against the appellant-accused, and therefore, he is not entitled to the benefit of reduction in sentence. In the instant case, it is amply clear the appellant-accused has committed rape on a girl of tender age of 14 years and 2 months forcefully without her consent and against her will. The Trial Court after having considered all the aspects of the matter in light of the evidence on record, arrived at a just and proper conclusion. We are. therefore, of the considered opinion that the Trial Court was perfectly justified in passing the judgment and order of conviction and sentence against the appellant-accused. We. therefore, do not find any reason to interfere with the same and to award a lesser sentence in absence of any extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum of 10 years which has been imposed by the learned trial Judge. To show mercy in the case of such a heinous crime would amount to travesty of justice and the plea for leniency is wholly unjustified. We are fortified in our view by the decision rendered by the Honourable Apex Court in the case of Dinesh Alias Buddha v. State of rajasthan reported in (2006) 3 Supreme court Cases 771. ( 8 ) FOR the foregoing reasons, I hold that there is no need to interfere with the finding of fad arrived or the sentence awarded by the learned Sessions Judge, Junagadh against the appellant-accused and the appeal is liable to be dismissed. ( 9 ) IN the result, the appeal fails and is hereby dismissed. The judgment and order of conviction and sentence dated 18th May, 2006 passed by the learned Sessions Judge in Sessions Case no. 68 of 1996 is hereby confirmed. The Muddamal articles to be disposed of in terms of the directions given by the Trial Court in the impugned judgment. Appeal dismissed.