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2007 DIGILAW 227 (GUJ)

SUO-MOTU v. SARMAN GIGABHAI BAMBHANIA

2007-04-04

ANIL R.DAVE, K.S.JHAVERI

body2007
ANIL R. DAVE, J. ( 1 ) BEING aggrieved by the judgement and order dated 17th October, 2003 passed by the Additional Sessions Judge, Fourth Fast Track Court, Veraval in Sessions Case No. 83/2002, the appellant-accused has filed Criminal Appeal No. 1506/03. By virtue of the impugned judgement and order, the appellant has been convicted of the offence under Section 376 read with Section 511 of Indian Penal Code and has been sentenced to Rigorous Imprisonment for 5 years and a fine of Rs. 1000, in default, Rigorous Imprisonment for three months. The appellant has also been held guilty under the provisions of Section 342 of Indian Penal Code and he has been sentenced to Rigorous Imprisonment for 6 months. The substantive sentences have been ordered to run concurrently. ( 2 ) WHILE hearing the appeal at an earlier stage, this Court had issued notice to the appellant calling upon him to show cause as to why he should not be held guilty for the offence punishable under Section 376 of the Indian Penal Code and/or for enhancement of the punishment imposed by the learned Additional Sessions Judge. The said proceedings have been registered as Miscellaneous Criminal Application No. 891/2004. Both, the appeal filed by the appellant and the Miscellaneous Criminal Application for enhancement of punishment have been heard and decided together. ( 3 ) IN view of the observation made by the Hon ble Supreme Court in the case of State of Karnataka v. Puttaraja AIR 2003 SCW 6429 , name of the victim has not been stated and she has been referred to as a victim. ( 4 ) BEFORE the Sessions Court, the case of the prosecution, in a nutshell, was as under; 4. 1. The victim was the neighbour of the appellant. When the victim was alone, the appellant had called the victim and had committed the offence of rape. After considering the evidence, which had been adduced before the Sessions Court, the Sessions Court has come to the conclusion that, in fact, rape had not been committed but an attempt was made to commit rape and, therefore, the appellant has been convicted under the provisions of Section 376 read with Section 511 of the Indian Penal Code. After considering the evidence, which had been adduced before the Sessions Court, the Sessions Court has come to the conclusion that, in fact, rape had not been committed but an attempt was made to commit rape and, therefore, the appellant has been convicted under the provisions of Section 376 read with Section 511 of the Indian Penal Code. ( 5 ) WE have heard learned advocate Shri Ashish Dagli with learned advocate Shri P. K. Shukla appearing for the appellant and learned APP Shri K. T. Dave appearing for the State. ( 6 ) LOOKING to the facts of the case and the evidence adduced before the Trial Court, in our opinion, the learned advocates appearing for the appellant, in all fairness, could not argue the matter vehemently but all possible efforts were made by them to see that the quantum of punishment imposed upon the appellant is reduced. ( 7 ) WHILE making out a case for acquittal or reduction of punishment, it has been argued on behalf of the appellant that the Sessions Court has committed an error in coming to the conclusion that age of the victim was less than 12 years. It has been submitted that age of the victim was 17 years or more and the victim was a consenting party in this case. ( 8 ) IT has been submitted on behalf of the appellant that before the Doctor who had examined the victim, it was stated that age of the victim was 17 years. Dr. Meghnathi, P. W. No. 1 (Exh. 10) has recorded the said fact in the case papers (Exh 12) of the hospital. ( 9 ) WE do not find any substance in the aforestated argument advanced on behalf of the appellant. It is pertinent to note that ossification test had been carried out and as a result of the ossification test, it has been stated before the Sessions Court that age of the victim could have been around 12-14 years. It is pertinent to note that birth certificate of the victim (Exh. 31) is on record. The date of birth of the victim is 29/08/1990 and the incident had taken place on 27th August, 2002. Thus, if one looks at the birth certificate, age of the victim was less than 12 years and according to the ossification test also her age was around 12 to 14 years. 31) is on record. The date of birth of the victim is 29/08/1990 and the incident had taken place on 27th August, 2002. Thus, if one looks at the birth certificate, age of the victim was less than 12 years and according to the ossification test also her age was around 12 to 14 years. We are conscious of the fact that ossification test cannot reveal the exact age, but at least the birth certificate can be relied upon. ( 10 ) AS the date of birth of the victim is 29/08/1990, her age was less than 12 years at the time when the incident had taken place and, therefore, submission of the learned advocate appearing for the appellant that the victim was a consenting party has to be totally ignored. Consent or no consent, when the victim was less than 12 years old, one cannot say that no offence had been committed. ( 11 ) IT has been thereafter submitted on behalf of the appellant that there was no injury on the body of the victim and, therefore, no offence of rape had been committed or no attempt was made to commit rape by the appellant. It is true that the victim was not having any injury on her person but the learned APP has drawn attention to the fact that the report of the Forensic Science Laboratory (Exh. 57) clearly reveals that from the vaginal swab, sperm was found. In such an event, question with regard to injury becomes less important. There can be a case where no injury could have been inflicted upon the victim, but presence of sperm of the convict on the person of the victim as well as on the clothes of the victim, as revealed from Exh. 57, establishes the fact that an attempt was made by the victim to commit rape. In the circumstances, we do not agree with the submission made by the learned advocate appearing for the appellant that as there was no injury on the private part of the victim, the possibility of an offence being committed by the convict should be ruled out. ( 12 ) EXCEPT the aforestated arguments, no other argument has been advanced by the learned advocate appearing for the appellant. ( 12 ) EXCEPT the aforestated arguments, no other argument has been advanced by the learned advocate appearing for the appellant. The arguments advanced by the learned advocate appearing for the appellant have been duly replied by the learned APP and looking to the facts of the case and the evidence adduced before the Sessions Court, in our opinion, it cannot be said that the appellant has not committed the offence. ( 13 ) AS a matter of fact, the State has not preferred an appeal against the impugned judgement and order. Otherwise, in our opinion, there could have been a case of commission of rape because if one carefully goes through the evidence and provisions of Section 375 of the Indian Penal Code, perhaps a case could have been made out by the State that the appellant had committed the offence. Be that as it may, as the State has not filed an appeal, we need not go into all those probabilites. ( 14 ) IT is pertinent to note here that notice for enhancement of punishment had been issued by this Court to the convict. The said proceedings, Criminal Miscellaneous Application No. 891/2004, are also heard alongwith Criminal Appeal No. 1506/2003. ( 15 ) WHILE making submissions against enhancement of punishment, learned advocate Shri Shukla appearing for the appellant has drawn our attention to the judgement dated 16th March 2004 delivered in Criminal Appeal No. 269/2004 with Criminal Misc. Application Nos. 1531/2004 and 1659/2004 for submitting that in view of law laid down in the said judgement, it would not be open to this Court to enhance punishment imposed upon the appellant. After considering the judgements of the Hon ble Supreme Court, this Court has expressed a view to the effect that in an appeal against conviction, the High Court cannot, while exercising powers under Section 374 of the Cr. P. C. , alter a finding of acquittal into conviction. In view of the facts of this case, the said judgment will not help the appellant as finding of acquittal is not to be converted into conviction in this case. P. C. , alter a finding of acquittal into conviction. In view of the facts of this case, the said judgment will not help the appellant as finding of acquittal is not to be converted into conviction in this case. ( 16 ) IT is not in dispute that the Sessions Court has come to the conclusion that the appellant had made an attempt to commit rape and, therefore, he has been punished under the provisions of Section 376 read with Section 511 of the Indian Penal Code and the appellant has been sentenced to Rigorous Imprisonment for 5 years and a fine of Rs. 1000/-, in default of payment, Rigorous Imprisonment for 3 months. ( 17 ) IN our opinion, the Sessions Court has shown leniency towards the appellant while imposing the punishment. Rigorous imprisonment for 5 years and a fine of Rs. 1,000/- has been imposed upon the appellant. Age of the victim in this case is less than 12 years and looking to the provisions of Section 376 r/w Section 511 of the IPC, the Sessions Court has imposed minimum punishment upon the appellant. ( 18 ) IF one looks at Section 376 (2) (f), which provides that whoever commits rape on a woman, who is under 12 years of age, shall be punished with Rigorous Imprisonment for a term which shall not be less than 10 yeas but which may be for life and shall also be liable to fine. ( 19 ) IN the instant case, age of the victim was less than 12 years at the relevant time and, therefore, the appellant shall have to be punished as per the provisions of Section 376 (2) (f) r/w Section 511 of the IPC. ( 20 ) IN view of the provisions of Section 376 r/w Section 511 of IPC, the minimum punishment that could have been imposed upon the appellant is 5 years rigorous imprisonment, whereas maximum punishment could have been 10 years RI as, life imprisonment, as per the provisions of Section 57, is to be treated as an imprisonment equivalent to 20 years. In case of an attempt to commit rape, as per provisions of Section 511, one-half of the maximum punishment which could have been imposed upon the appellant under Section 376 of the IPC could have been imposed upon the appellant. In case of an attempt to commit rape, as per provisions of Section 511, one-half of the maximum punishment which could have been imposed upon the appellant under Section 376 of the IPC could have been imposed upon the appellant. As stated herein above, as per the provisions of Section 376 (2) (f) of IPC, maximum punishment for committing rape on a girl aged less than 12 years can be life imprisonment, that is, 20 years as per provisions of Section 57 of the IPC. ( 21 ) IN our opinion, the trial court has shown undue leniency towards the appellant while imposing rigorous imprisonment for 5 years and a fine of Rs. 1,000/- in spite of the fact that the victim was less aged than 12 years. There are certain principles, which are to be scrupulously followed by the Courts at the time of imposing punishment upon the accused. While imposing punishment, the heinousness of the crime is to be considered by the court. Such a heinous crime committed on a little girl should not have been taken lightly and, in our opinion, the learned Addl. Sessions Judge should have become more harsh with the appellant so as to see that the punishment inflicted upon the appellant is also having a deterrent effect. Nowadays, when such offences are increasing day by day, in our opinion, this Court has to become harsh so that it really can have a deterrent effect on the minds of criminals who are likely to commit such crimes. The appellant has behaved in a shockingly cruel manner and, therefore, we feel that at least 10 years rigorous imprisonment, the punishment, which is maximum for making an attempt to rape a girl who is aged less than 12 years, should be imposed upon the apellant. ( 22 ) IN the aforestated circumstances, we modify the order passed by the Sessions Court imposing punishment upon the appellant and enhance it to the effect that the appellant shall undergo Rigorous Imprisonment for 10 years instead of 5 years as directed by the Sessions Court. ( 23 ) IT has been submitted by the learned APP that the appellant has already been released from jail on 17th October, 2006 as his punishment to undergo Rigorous Imprisonment for 5 years had been completed by him. ( 23 ) IT has been submitted by the learned APP that the appellant has already been released from jail on 17th October, 2006 as his punishment to undergo Rigorous Imprisonment for 5 years had been completed by him. In the aforestated circumstances, the appellant shall have to undergo the remaining Rigorous Imprisonment for 5 years and, therefore, non-bailable warrant be issued to the appellant so as to procure his presence and sentence him for Rigorous Imprisonment for the remaining period of 5 years. As stated herein above, the appellant shall have to undergo further Rigorous Imprisonment for five years and for that purpose we partly allow Miscellaneous Criminal Application No. 891/2004 exercising powers under Section 397 read with Section 401 of the Criminal Procedure Code. ( 24 ) CRIMINAL Appeal No. 1506/2003 filed by the appellant-convict is dismissed.