Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 1113 (GUJ)

State of Gujarat v. Thakor Pratapji Kanaji

2015-10-28

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. Present appeals are directed against the judgment and order dated 16/03/2013 passed by the learned Additional Sessions Judge, Patan in Sessions Case No. 54 of 2011, whereby, the accused came to be convicted and for the offence punishable under Section 63 r/w. 114 of the Indian Penal Code, 1860 (for brevity, 'the IPC'), they were sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 500/- each and in default of payment of fine, to undergo further simple imprisonment for six months. The accused were also convicted for the offence punishable under Section 366 r/w. 114 of the IPC and sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 500/- each and in default of payment of fine, to undergo simple imprisonment for nine months and for the offence punishable under Section 376 of the IPC, the accused No. 3 was sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 1,000/- and in default of payment of fine, to undergo further simple imprisonment for nine months. All the sentences were to run concurrently. Accordingly, Criminal Appeal No. 1106 of 2013 has been filed by the State for enhancement of sentence, whereas, Criminal Appeal Nos. 474 of 2013 and 496 of 2013 have been filed by the original accused against conviction. 2. Brief facts of the prosecution case are that on 15/02/2011, the accused, in aid and abetment of each other, without the consent of the minor victim and her parents, abducted the minor victim with intention to accused No. 3 marrying her forcefully and/or to rape her and raped her against her will and thereby, they committed the alleged offence punishable under Sections 363, 366, 376 r/w. 114 of the IPC, for which, a complaint came to be lodged against them. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, camp at Patan. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, camp at Patan. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the original accused, the prosecution has examined following witnesses and also produced following documentary evidence, as under: ORAL EVIDENCE S/n. Name of Witness Exh. 1. Complainant – Talaji Bhavanji 19 2. Victim 26 3. Sakarben Talaji 40 4. Thakor Vershiji Alamlji 42 5. Thakor Babuji Jakshiji 43 6. Pancholi Vijaykumar Chandulal 45 7. Dr. Vishnuchand Mohanbhai Patel 55 8. Dr. Bhairavi Balvant Pande 57 9. Dr. Pravinbhai Nathalala Solanki 60 10. Shambhubhai Ramjibhai Desai 65 11. IO-Savjibhai Thavdabhai Gameti 68 DOCUMENTARY EVIDENCE S/n. Document Exh. 1. Complaint 20 2. Certificate of Marriage 27 3. Agreement of Marriage 28 4. Police Yadi 46 5. Certificate issued by the Principal, Harji Adarsh Girls Primary School 40 6. Abstract of General Register of Harji Adarsh Girls Primary School 48 7. Panchnama of Place of offence 49 & 50 8. Panchnama fo physical condition of the accused 51 9. Panchnama of physical condition of the victim 52 10. Panchnama of seizure of scooter 53 11. Medical Certificates of the victim 56 & 58 & 61 12. Medical Certificate of accused No.3 62 13. Police Yadi 67, 69 & 70 14. Ravangi Nodh 71 15. Documents related to FSL 72 to 75 2.4 At the end of the trial, Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 (for brevity, 'the Code') were recorded in which they denied the evidence forthcoming on the record and stated that false case has been filed against them. Thus, after recording above-referred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused as aforesaid by impugned judgment and order. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the State as well as the accused have preferred the present appeals for enhancement of sentence and against conviction, respectively. 3. We have heard Ms. C.M. Shah, learned Additional Public Prosecutor, for the State and Mr. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the State as well as the accused have preferred the present appeals for enhancement of sentence and against conviction, respectively. 3. We have heard Ms. C.M. Shah, learned Additional Public Prosecutor, for the State and Mr. Mahendra K. Patel, learned advocate for the original accused. 3.1 Mr. Patel, learned advocate for the accused, took us to the evidence on record and contended that this is case of consent and the age of the victim is more than 18 years and accordingly, she was not minor when the alleged offence had occurred. He further submitted that the learned trial Judge has failed to appreciate the fact that the complaint had been lodged after about 15 days from the incident in question had occurred, which itself creates doubt in the prosecution case. Further, on the aspect of age, he took us to the Certificate of Marriage, produced at Exh. 27 and submitted that in the said certificate, the date of birth of the victim, is mentioned to be 08/03/1990 and her age is shown as 21 years and accordingly, on the date of incident, she was aged more than 18 years and therefore, when, this is a case of consent, Section 376 of the IPC has wrongly been inflicted and accordingly, the accused No. 3 has been wrongly convicted under the said section. He also submitted that the prosecution has failed to prove the offence against the accused Nos. 1, 2 and 4 beyond reasonable doubt and accordingly, the learned trial Judge has committed an error in convicting them. He took us to the evidence of the parents of the victim, evidence of the victim as well as Vershiji Ajmalji, Exhs. 19, 26, 40 and 42 respectively and submitted that as per the history given by the victim, it is a case of consent, besides, no injury was there on the private part of the victim. Making above submissions, he contended that benefit of doubt is required to be given to the accused and they may be set at large. 4. Whereas, Ms. Shah, learned Additional Public Prosecutor, for the State contended that if the evidence of the victim is referred, she has narrated the facts completely. Making above submissions, he contended that benefit of doubt is required to be given to the accused and they may be set at large. 4. Whereas, Ms. Shah, learned Additional Public Prosecutor, for the State contended that if the evidence of the victim is referred, she has narrated the facts completely. Moreover, she invited attention of the Court to the history given by the victim by which, the fact of the physical relation between the victim and accused No. 3 is proved. She further submitted that the Marriage Certificate is dated 22/02/2011 and from the certificate issued by school, the date of birth is mentioned to be 04/03/1995 and the age of the victim is accordingly proved by the cogent and reliable evidence. She submitted that as per the school record, the victim was admitted in the school at the age of five years and accordingly, it is clear that the victim was less of 16 years when the alleged offence had occurred. Last but not least, Ms. Shah, learned Additional Public Prosecutor, submitted that the State has filed the appeal for enhancement of sentence and the offence is already proved against accused beyond reasonable doubt and when, the trial Court has dealt with each and every aspect of the matter minutely, this Court may not interfere so far as conviction is concerned. However, so far as sentence imposed by the trial Court upon the accused is concerned, the minimum sentence provided for the offence punishable under Section 376 of the IPC is seven years and accordingly, the learned trial Judge has erred in imposing lesser punishment to accused No. 3 and also qua other accused and this Court may accordingly allow the appeal filed by the State and sentence of all the accused may suitably be enhanced. 5. We have examined the matter carefully and gone through the evidence on record. We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. Considering the evidence of the victim at Exh. 26 and the evidence of her parents and Vershiji, recorded at Exhs. 19, 40 and 42 respectively, it is clearly established that the victim was abducted by the accused under the guise of, she is required to go to the place of work of her mother. Moreover, from the Certificate of Marriage dated 22/02/2011 at Exh. 26 and the evidence of her parents and Vershiji, recorded at Exhs. 19, 40 and 42 respectively, it is clearly established that the victim was abducted by the accused under the guise of, she is required to go to the place of work of her mother. Moreover, from the Certificate of Marriage dated 22/02/2011 at Exh. 27, the presence of accused is also proved. An attempt was made to submit that the complaint was filed after about 15 days of the incident, however, we cannot lose site of the fact that the age of the victim is proved beyond reasonable doubt and the victim was less than 16 years when the alleged offence had occurred and the accused Nos. 1 and 2 had abetted offence and accordingly, we are of the opinion that the learned trial Court has rightly imposed conviction upon the accused. We accordingly find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Further, the learned advocate for the accused is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order and we are in complete agreement with the reasonings given and the findings arrived at by the trial Court and looking to the crucial but limited role played by the accused Nos. 1, 2 and 4, in our opinion, the sentence imposed upon them by the trial Court appears to be just and proper. However, so far as sentence imposed upon the accused No. 3 by the trial Court of three years rigorous imprisonment is concerned, looking to the provision of law, in our opinion, the same is inadequate and is required to be enhanced, as minimum sentence prescribed for the offence punishable under Section 376 of the IPC is seven years and to that extent, the impugned judgment and order of the trial Court is required to be modified. 5.1 Moreover, recently, it has been held by the Hon'ble Apex Court in the decision in the case of Raj Bala Vs. 5.1 Moreover, recently, it has been held by the Hon'ble Apex Court in the decision in the case of Raj Bala Vs. State of Haryana and Others etc. etc. in Criminal Appeal Nos. 1049 to 1050 of 2015, decided on 18/08/2015, in para 1 and 2 as under: "1. In Gopal Singh v. State of Uttarakhand, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:- "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." [Emphasis added] 2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that:- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be--as it should be--a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N." [Emphasis supplied] And again:- "The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"." 5.2 Accordingly, we are of the considered opinion that the interest of justice would meet if the sentence for the offence punishable under Section 376 of the IPC is enhanced to seven years' imprisonment qua accused No. 3 and accordingly, the appeal filed by the State for enhancement of sentence is required to be partly allowed qua accused No. 3. 6. In view of the aforesaid discussion, Criminal Appeal No. 1106 of 2013, filed by the State for enhancement of sentence of all the four accused, succeeds in part and impugned judgment and order dated 16/03/2013 passed by the learned Additional Sessions Judge, Patan in Sessions Case No. 54 of 2011 is modified to the aforesaid extent and it is held that for the offence punishable under Section 376 of the IPC, original accused No. 3 - Thakor Bakaji Pratapji shall have to undergo rigorous imprisonment for 07 (seven) years, instead of 03 (three) years, as has been awarded by the trial Court. The rest of the order shall remain unaltered. Accordingly, Criminal Appeal Nos. 474 of 2013 and 496 of 2013, filed by the accused against conviction, are dismissed. Accordingly, if the accused are on bail, they shall surrender to the concerned jail authority within 10 weeks from today. Bail bonds, if any, shall stand cancelled. The rest of the order shall remain unaltered. Accordingly, Criminal Appeal Nos. 474 of 2013 and 496 of 2013, filed by the accused against conviction, are dismissed. Accordingly, if the accused are on bail, they shall surrender to the concerned jail authority within 10 weeks from today. Bail bonds, if any, shall stand cancelled. Registry to return the R & P, if any, to the trial Court forthwith.