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Gujarat High Court · body

2009 DIGILAW 694 (GUJ)

Akbar Hajibhai Miyana v. State of Gujarat

2009-11-02

M.D.SHAH

body2009
Judgment M.D. Shah, J.—These appeals are directed against the judgment and order of conviction and sentence dated 17.9.1999 passed by the learned Addl. Sessions Judge, Morbi in Sessions Case No. 27/98 for offences punishable under Sections 363, 366, 376 and 506 (2) of Indian Penal Code and at the end of the trial, the appellant was convicted and sentenced to undergo rigorous imprisonment for 2 years and 2½ years respectively and fine of Rs. 20,000/-, in default he was directed to undergo rigorous imprisonment for one year for offences punishable under sections 363 and 366 of IPC . So far as offence under Sections 376 and 506(2) of IPC is concerned, the appellant was acquitted of the offences. The State of Gujarat has also preferred criminal appeal being Criminal Appeal No. 1147 of 1999 challenging the acquittal of the appellant-accused. 2. The facts of the case of the prosecution in brief are as under: The complainant-Devaben and her family including the victim was residing near Ramdev Salt Works, Morbi. It is the case of the prosecution that on 18.12.1997 at about 7.30 p.m. when the victim has gone to answer nature’s call, four persons came there and took her away in an autorickshaw and was locked in one room and the present appellant-accused committed rape on her on number of times. It is also alleged that under threat she was kept with the accused for seven days and during this period she was repeatedly raped by him. A complaint was lodged by mother of the victim-Devaben with Morbi City police station. Thereafter investigation was started and the accused was arrested. Upon arrest and at the end of investigation, charge sheet was submitted in the Court of learned Judicial Magistrate First Class. As the offence was sessions triable case, the learned Magistrate committed the case to the Court of Sessions at Morbi under Section 209 of the Criminal Procedure Code. The learned Addl. Sessions Judge framed charge against the accused at Exh.1. The charge was read over and explained to the accused. The accused denied all the charges and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 3. The learned Addl. Sessions Judge framed charge against the accused at Exh.1. The charge was read over and explained to the accused. The accused denied all the charges and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 3. To proved the guilt against the accused, the prosecution examined the complainant, victim, Doctor etc., and relied upon several documentary evidences like the complaint, medical certificate in respect of the victim as well as the accused issued by the Medical Officer, School Leaving Certificate and other documents regarding age of the victim and FSL report. 4. On submission of closing pursis by the prosecution, the learned Addl. Sessions Judge recorded further statement of the accused under Section 313 of the Criminal Procedure Code. Upon affording opportunity of hearing to the learned advocates, and the learned APP, the learned Sessions Judge delivered the impugned judgment convicting and sentencing the appellant as aforesaid in Para 1 of this judgment. Hence this appeal. 5. It is submitted by learned Advocate Mr. J.M. Buddhbhatti, for the accused that at the time of the incident, the accused was about 20 years and he has the sole responsibility of maintaining his family and parents. Mr. Buddhbhatti submitted that he does argue this appeal on merits but he presses this appeal only on the quantum of sentence. 6. It is submitted by the learned APP that the State has filed separate appeal being Criminal Appeal No. 1147/99 challenging the acquittal of the accused for offence under Sections 376 and 506(2) of IPC. She has submitted that the trial Court has committed error in acquitting the accused. She has submitted that after scrutinising the evidence in great detail, the trial Court has come to the conclusion that the age of the victim was about 16 years at the time of the incident and nothing has come on record to show that the trial Court has committed error in appreciating the evidence on record to show that the age of the victim was above 16 years. She further submitted that taking into consideration of the submissions made by the learned Advocate for the appellant-accused, the Court may pass necessary orders. 7. This Court has gone through the impugned judgment and order passed by the learned Sessions Judge. She further submitted that taking into consideration of the submissions made by the learned Advocate for the appellant-accused, the Court may pass necessary orders. 7. This Court has gone through the impugned judgment and order passed by the learned Sessions Judge. The learned Sessions Judge discussed the evidence regarding the age of the victim in great detail and rightly came to the conclusion that the victim was more than 16 years of age at the time of the incident and she was consented party to the incident. Taking into consideration the conduct of the victim, in the opinion of this Court, with her consent the accused stayed and had intercourse with her. It is rightly held by the learned Sessions Judge that on the date of the incident, she was below 18 years and so without considering the fact that with consent of the victim the accused had committed intercourse with the victim, prima facie, an offence under Section 363 was committed as well as the manner in which the incident took place as the accused was only 20 years at the time of the incident, if the sentence is reduced from 2½ years to 2 years for offence under Section 366 ends of justice would be met. 8. In the result, the appeal is partly allowed. The sentence of 2½ years’ rigorous imprisonment imposed on the appellant-accused for the offence punishable under Section 366 of IPC is ordered to be reduced to 2 years’ rigorous imprisonment. So far as the sentence imposed for offence under Section 363 is concerned, the same is not altered by this court. Rest of the judgment and order will remain unaltered. The accused is entitled to get benefit of set off for the period already undergone under Section 428 of the Criminal Procedure Code. 9. Criminal Appeal No. 1147 of 1999 filed by the State of Gujarat challenging the acquittal order for offence under Section 376 of IPC dated 17.9.1999 passed in Sessions Case No. 27 of 1998 by the learned Addl. Sessions Judge, Morbi, is dismissed.