Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 1170 (GUJ)

State of Gujarat v. Rafiqsha Ismailsha Shah Fakir

2015-11-05

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. The present appeal, under section 377 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') is directed against the judgment and order dated 07/03/2008 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Amreli in Sessions Case No. 103 of 2006, whereby the respondent herein - original accused has been convicted for the offence punishable under Sections 363 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 1,000/- and in default of payment of fine, to undergo, further simple imprisonment for two months; for the offence punishable under Section 366 of the IPC, he was sentenced to undergo rigorous imprisonment for four years and a fine of Rs. 2,000/- and in default of payment of fine, to undergo, further simple imprisonment for four months and for the offence punishable under Section 376 of the IPC, he was sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 3,000/- and in default of payment of fine, to undergo, further simple imprisonment for four months. All the sentences were to run concurrently. 2. Brief facts of the prosecution case are that 20 days prior to 15/08/2006, the respondent herein - original accused, together with two unknown persons, abducted the victim without her consent and/or the consent of her parents, with an intention to forcefully marry her and/or rape her and thereby, committed the alleged offence, for which a complaint came to be lodged against him. 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, Amreli. 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 produced following documentary evidence, as under: Sr. Name Exh. 1 Dr. Pinakin Ranchhodbhai Patel 13 2 Dr. 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 produced following documentary evidence, as under: Sr. Name Exh. 1 Dr. Pinakin Ranchhodbhai Patel 13 2 Dr. Harsukh Kesudas Gondaliya 18 3 Victim 26 4 Kulsumben W/o. Adambhai 30 5 Kalubhai Nanbhai Bilakhiya 31 6 Akhtar Husenbhai Khorani 33 7 Arifbhai Satarbhai 35 8 Hanifbhai Abubhai 37 9 Arvindbhai Shamjibhai Devani 39 10 Bhikhubhai Keshubhai 41 11 Satarbhai Ismailbhai 42 12 Gafarbhai Husenbhai 44 13 Hirenbhai Chandulal Sheth 45 14 Rahimbhai Kasambhai 47 15 Leenaben Kantilal Mehta 48 16 Rambhai Vaghabhai Kandoliya, IO 51 DOCUMENTARY EVIDENCE 1 Return as to Chemical Analysis 14 2 Case papers of the victim 15 3 Yadi to MO by PI, Amreli 16 4 Certificate issued by MO of victim 17 5 Case papers as to physical check up of the victim 19 6 Yadi to MO by PI, Amreli 20 7 Case papers of the accused 21 8 Yadi to MO by PI, Amreli 22, 23 9 Certificate of MO of accused 24 10 Complaint 28 11 Panchnama of clothes of the victim 32 12 Panchnama of clothes of the accused 34 13 Panchnama of physical condition of the accused 36 14 Panchnama of place of offence 38 15 Panchnama of place of offence of Bhavnagar 40 16 Panchnama of place of offence of Veraval 43 17 Panchnama of place of offence of Dhasa 46 18 School Leaving Certificate of victim 49 19 Extract of General Register of Amreli Girls School 50 20 Depute Order 52 21 Despatch Note of muddamal 53 22 Analysis Report 54, 55 23 Certificate of Registration of Birth of victim issued by the Amreli Nagar Palika 59 2.4 At the end of the trial and after recording the Further Statement of the accused under Section 313 of Code and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge concluded 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 appellant - State has preferred the present appeal. 3. Mr. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - State has preferred the present appeal. 3. Mr. L.R. Pujari, learned Additional Public Prosecutor appearing for the appellant - State has mainly contended that though the prosecution has successfully proved the case against the respondent - accused, looking to the tenor of Section 376 of the IPC, which provides for minimum sentence of seven years imprisonment, the trial Court has committed an error in imposing lessor and inadequate punishment for such a serious offence and accordingly, he requested to allow the present appeal in the interest of justice. 4. On the other hand, learned advocate Mr. Oza for the respondent - original accused, fairly conceded that the accused has not preferred any appeal against conviction. However, he submitted that the respondent - accused has already undergone the sentence imposed upon him by the trial Court and accordingly he is at large. He also submitted that the financial condition of the accused is very weak and he could pay the fine imposed upon him by the trial Court only in 2011. He further submitted that the respondent - accused has settled in life and is a responsible person and accordingly, in the given facts and circumstances, he requested that when the respondent - accused has already undergone the sentence imposed by the trial Court, this Court may not interfere in the appeal. 5. We have heard the learned advocates for both the sides and 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. We find that though the offence is proved by the prosecution against the respondent - accused, however, taking into consideration the circumstances put forward by the learned advocate for the accused, when the accused has already undergone the sentence imposed upon him by the trial Court in the year 2011 and has now settled, in the peculiar facts and circumstances of the case, we deem it proper not to disturb the findings recorded by the trial Court. 6. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. 6. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. The impugned judgment and order dated 07/03/2008 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Amreli in Sessions Case No. 103 of 2006 is confirmed. Bail bond, if any, shall stand cancelled. Registry to return the R&P, if any, to the trial Court forthwith. However, it is clarified that this order having been passed in the peculiar facts and circumstances of the case, will not be treated as precedent.