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2012 DIGILAW 263 (GUJ)

Jasubhai Mathurbhai v. State of Gujarat

2012-03-27

A.L.DAVE, N.V.ANJARIA

body2012
Judgment A.L. Dave, J.—The appeal arises out of a judgement and order rendered by Sessions Court, Bhavnagar, on 06.12.2005 in Sessions Case No. 36 of 2002 convicting the appellants for the offences punishable under Section 376(2)(g) read with Section 114 of the Indian Penal Code, and sentencing them for rigorous imprisonment for fourteen years and fine of Rupees Seven Thousand, in default, simple imprisonment for three years. The appellants were also convicted for the offences punishable under Section 506(2) read with Section 114 of the Indian Penal Code, and ordered to undergo rigorous imprisonment for five years and fine of Rupees Three Thousand, in default, simple imprisonment for sixteen months. The appellants were convicted and sentenced for offences punishable under Section 450 read with Section 114 of the Indian Penal Code, and ordered to undergo rigorous imprisonment for five years and fine of Rupees Two Thousand, in default, simple imprisonment for twelve months. The appellants were also convicted for offences punishable under Section 135 of the Bombay Police Act, 1951 to pay fine of Rupees Two Hundred, in default, simple imprisonment for one month. All the sentences were directed to run concurrently. 2. As per the prosecution case, the appellants entered the house of Hakuben Dulabhai Makwana in the night of 29.11.2001 at about 12.00 midnight, and both of them committed rape on Hakuben in presence of Savitaben, the mother of the prosecutrix. A First Information Report was lodged, on the basis of which, offence was registered and investigated. The Panchnama of place of scene was also drawn. Medical tests of the victim were carried out and after arrest of the accused, they were also sent for medical examination, and ultimately charge sheet was filed. DNA was also collected by the investigating agency and sent to the Forensic Science Laboratory for investigation and opinion. 3. On charge sheet being filed in the Court of Judicial Magistrate First Class, Talaja, the case was committed to the Court of Sessions and Sessions Case No. 36 of 2002 came to be registered. Charge was framed against the accused persons by the Sessions Court at Exh.7 for the offences punishable under Sections 376(2)(g), 506(2) and 114 of the Indian Penal Code. The accused persons pleaded not guilty to the charge and came to be tried and hence this appeal. 4. We have heard learned advocate Mr. Agarwal for the appellants. Charge was framed against the accused persons by the Sessions Court at Exh.7 for the offences punishable under Sections 376(2)(g), 506(2) and 114 of the Indian Penal Code. The accused persons pleaded not guilty to the charge and came to be tried and hence this appeal. 4. We have heard learned advocate Mr. Agarwal for the appellants. After arguing the matter for a while and discussing the evidence, Mr. Agarwal submitted that he does not press the appeal on merits, but requested that the appeal may be treated as a mercy petition, and sentences awarded by the trial Court may be reduced. He submitted that the sentence is unduly harsh, and the same may be reduced keeping in view the reformatory theory to which our criminal justice system is wedded to. Mr. Agarwal submitted that the appellant Jasubhai Mathurbhai has already served about ten years of sentence, whereas appellant Himmatbhai Ramjibhai has served about seven years of sentence. Himmatbhai is on bail and is present before this court, whereas Jasubhai was released on furlough on 06.03.2012, and was supposed to surrender on 20.03.2012, but he has not surrendered uptill now, and he is absconding. 5. Mr. Agarwal submitted that both the persons were young boys when the incident occurred, they do not have any criminal antecedents and the larger sentence has already affected the life of the family and would further aggravate the situation. Therefore, the case of the appellants may be considered sympathetically. 6. Learned A.P.P. Mr. R.C. Kodekar, opposed the appeal, and according to him, the sentence awarded is just and proper in view of the fact that minimum sentence of ten years is prescribed by law and looking to the gravity of the crime, the sentence awarded by the trial Court was just and proper. 7. When the appeal is not to be decided on merits, as the same is not pressed as such, and only the quantum of punishment is required to be examined, the relevant consideration would be what were the ages of the convicts at the time of offence, what are their antecedents, what are their family background and what will be the impact of a harsher punishment on the family of the convicts. With the above parameters in mind, if the case of Jasubhai Mathurbhai is considered, who was about twenty one years of age when the incident occurred, he has no other criminal antecedents, and he has not shown any tendency of such nature, except that he has been irregular and not surrendering to jail authorities after enjoying furlough. The appeal, therefore, deserves to be partly allowed. Considering the minimum punishment prescribed for committing rape punishable under Section 376(2)(g) of the Indian Penal Code, and considering the background, we are of the view that if the appellants are ordered to undergo rigorous imprisonment for twelve years with no change in fine, the ends of justice would be met. The sentence in respect of conviction under Section 376(2)(g) of the Indian Penal Code in respect of both the appellants is altered to rigorous imprisonment for ten years in place of rigorous imprisonment for fourteen years and the fine and default clause will remain unaltered. 8. So far as other convictions and sentences are concerned, there shall be no change, and all the sentences shall run concurrently. The order of the trial Court regarding payment of compensation to the victim remains unaltered. 9. Appellant No. 1, Jasubhai Mathurbhai, has not surrendered on completion of his furlough leave. He shall surrender to the jail authorities forthwith. 10. So far as the Appellant No. 2, Himmatbhai Ramjibhai, is concerned, he is granted four weeks’ time to surrender. The appeal, thus, would stand partly allowed.