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2015 DIGILAW 818 (GUJ)

Iliyashbhai Yakubbhai Diwan v. State of Gujarat

2015-08-21

RAJESH H.SHUKLA

body2015
JUDGMENT : Rajesh H. Shukla, J. 1. The present Appeal is directed against the judgment and order passed in Sessions Case No. 40 of 2008 by the learned Sessions Judge, Bharuch dated 23-10-2008 recording conviction of the accused for the offence punishable under Section 376(2)(f) read with Section 506(1) of the Indian Penal Code imposing the sentence of R.I. for 10 years, for the offence under Section 376(2)(f) and fine of Rs. 21,000/- and in default S.I. for 2 years and R.I. for 8 months for the offence under Section 506(1) I.P.C. and fine of Rs. 3,000/- and in default S.I. for 3 months. The Court had also passed an order under Section 357 of the Code of Criminal Procedure that compensation of Rs. 20,000/- may also be paid to the victim. The facts of the case briefly summarised are as follows: As it transpires from the material and evidence on record, the accused is said to have committed rape on the victim girl aged about 9 years when she had gone to the house of the accused for tuition. The accused had asked her to go inside the house to fetch the match box, and when she entered the house, the accused followed her and laid her down and committed the offence, for which the complaint came to be filed, which was registered as F.I.R. No. 6 of 2008 with Wagra Police Station for the offence under Sections 376(2)(f) read with Section 506(1) of I.P.C. it is stated that when the victim had returned to her house, on an inquiry by the mother and the aunt in the evening, she disclosed the incident and had also stated that she was threatened that if she had told anybody she would be beaten the next day when she would visit the Madrasa. The victim girl has narrated to her mother and aunt, on the basis of which, the Sarpanch was called, and thereafter, the aforesaid F.I.R. being I-CR No. 6 of 2008 came to be registered with Wagra Police Station for the alleged offences as stated above. 2. After the investigation was over, the charge-sheet was filed and as the offence under Section 376 I.P.C. is triable by the Court of Sessions, it was committed to the Court of Sessions. Thereafter, the learned Sessions Judge framed the charge at Exh. 2. After the investigation was over, the charge-sheet was filed and as the offence under Section 376 I.P.C. is triable by the Court of Sessions, it was committed to the Court of Sessions. Thereafter, the learned Sessions Judge framed the charge at Exh. 5 against the accused for the offence under Section 376(2)(f) read with Section 506(1) of I.P.C. 3. In order to bring home the charges levelled against the accused, the prosecution examined the witnesses including the victim mother and also produced the documentary evidence which shall be referred to in the judgment hereinafter. 4. After recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge, Bharuch recorded further statement of the accused under Section 313 of Cr. P.C. 5. After hearing the learned A.P.P. as well as the learned Advocate for the accused, the learned Sessions Judge, Bharuch recorded the conviction of the accused and sentenced him as stated hereinabove. It is this judgment and order which has been assailed on the grounds stated in the memo of appeal. 6. Learned Advocate Shri Gajendra P. Baghel for the appellant-accused referred to the testimony of the victim (minor) P.W. 1 at Exh. 14 and has tried to submit that she was minor, and therefore, she was tutored. He also referred to the testimonies of the Panch Witness like Panch Witness for recovery of the clothes of the victim, Sultanbhai P.W. 2 at Exh. 16. Similarly, the testimony of the recovery of the mattress and other articles at Exh. 20 and also the testimony of Babubhai Patel - Panch Witness for recovery of the clothes of the accused at Exh. 24 and the testimony of Bilkish Banu (mother) P.W. 6 at Exh. 30. He has also referred to the medical evidence and the evidence of Dr. Ashokkumar Parmanand Gupta P.W. 7 at Exh. 32 who examined the victim and recorded the history and the medical certificate at Exh. 34. He also referred to the testimony of Dr. Jyotiben Ashokkumar Gupta P.W. 8 at Exh. 36 who also examined the victim and issued the medical certificate at Exh. 38 and injury certificate at Exh. 40. Learned Advocate Shri Baghel also referred to the testimony of Dr. Dipak Gopalbhai Thakkar - P.W. 11 of Civil Hospital, Bharuch at Exh. 51 and the medical certificate regarding the victim. Jyotiben Ashokkumar Gupta P.W. 8 at Exh. 36 who also examined the victim and issued the medical certificate at Exh. 38 and injury certificate at Exh. 40. Learned Advocate Shri Baghel also referred to the testimony of Dr. Dipak Gopalbhai Thakkar - P.W. 11 of Civil Hospital, Bharuch at Exh. 51 and the medical certificate regarding the victim. He also referred to the testimony of defence witnesses i.e. sister of the accused, Defence Witness-1 at Exh. 56, Defence Witness - 2 at Exh. 57. 7. Learned Advocate Shri Baghel tried to submit that it was Sunday and it was a holiday in the tuition, and therefore, the victim would not have gone there for the tuition. He further submitted that even if it is admitted that she had gone for tuition to the house of the accused, admittedly, her cousins (minor) were also there and they were present at the time of the offence, but they have not been examined. He submitted that even if they were child-witness, but they were eye-witnesses to the incident, and therefore, could have been examined. However they have not been examined, and therefore, the material witnesses have been withheld. He emphasized that they could have been the best witnesses and yet they have not been examined, and thereby, they have been withheld. Learned Advocate Shri Baghel referring to the evidence tried to submit that the panch was called who in turn called the police which itself suggest that the accused has been falsely implicated for which the Sarpanch was called. He further submitted that the Court below has failed to consider the testimony of the defence witnesses both with regard to the presence of the accused as well as the manner in which the incident could have taken place. He submitted that it has been categorically stated that the accused was attending the marriage, and therefore, the entire story is cooked up to implicate the accused. Learned Advocate Shri Baghel also submitted that through the intervention of the Sarpanch and the father of the accused there was a settlement with a sum of Rs. 50,000/- and it would clearly suggest that the possibility of false implication is not ruled out. 8. Learned Advocate Shri Baghel lastly submitted that the accused is in jail for more than 6 years and he is also required to make the payment of Rs. 50,000/- and it would clearly suggest that the possibility of false implication is not ruled out. 8. Learned Advocate Shri Baghel lastly submitted that the accused is in jail for more than 6 years and he is also required to make the payment of Rs. 21,000/- and in default he may have to suffer the further imprisonment for two years. He therefore submitted that considering the background as well as the circumstances, even while maintaining the conviction, he may be released with modification in the sentence. 9. Learned A.P.P. Shri H.L. Jani referred to the testimony of the witnesses including the testimony of P.W. 1 victim at Exh. 14, the testimony of the mother P.W. 6 at Exh. 30 and also the medical evidence in the form of testimony of Dr. Ashokkumar Gupta P.W. 7 at Exh. 32, testimony of Dr. Jyotiben Ashokkumar Gupta P.W. 8 at Exh. 36 and also the testimony of Dr. Dipak Thakkar P.W. 11 who is the Medical Officer, Civil Hospital, Bharuch at Exh. 51. Learned A.P.P. Shri H.L. Jani submitted that the testimony of the victim itself is sufficient for the charges which have been held to be established, which in turn have been corroborated by the medical evidence. He further submitted that the injury to the victim on her private part corroborated with the medical evidence and F.S.L. report hardly leaves any doubt about the offence. He submitted that the contention raised about the presence of other two minor cousins could hardly be relevant as though they were present, the victim was asked to go inside to fetch the match box when the offence was committed. He emphasized from the testimony of the victim about the incident that she was laid and her mouth was gagged so that she could not raise any shout. Further, she was threatened that if she tell to anyone she would be beaten, and therefore, in fact she could not initially conveyed to her mother also. Learned A.P.P. Shri Jani submitted that the testimony of the victim corroborated by the medical evidence clearly established the offence for which the conviction has been recorded. He submitted that though the defence witnesses have been examined who are interested and they have tried to raise the doubt about the presence which has not been believed. Learned A.P.P. Shri Jani submitted that the testimony of the victim corroborated by the medical evidence clearly established the offence for which the conviction has been recorded. He submitted that though the defence witnesses have been examined who are interested and they have tried to raise the doubt about the presence which has not been believed. Learned A.P.P. Shri Jani also submitted that on the one hand the accused has raised the contention about the presence on the ground that he has been falsely implicated, on the other hand, it is an admitted fact that there was an attempt of settlement through Sarpanch for Rs. 50,000/- which clearly established not only the commission of the offence by the accused but also reflected the conduct of the accused, that even thereafter, he has tried his best to either pressurize or persuade the victim and the family. Learned A.P.P. Shri Jani submitted that the impugned judgment and order recording the conviction is just and proper. Learned A.P.P. Shri Jani further submitted that though the punishment for the offence could be life imprisonment and the minimum punishment of 10 years is awarded. He further submitted that considering the gravity of the offence which has also been reflected in the judgment, the Court below has in Paragraph 42 failed to appreciate the gravity of the offence. He emphasized the observations in Paragraph 42 of the impugned judgment that the accused who was a Molvi and a Teacher having a respect in the society commits offence on a victim child who is a student who had gone for tuition, and therefore, minimum sentence could not have been awarded. However, considering the fact that he was married with children, the minimum sentence has been awarded. Learned A.P.P. Shri Jani submitted that though the State has not preferred enhancement appeal, it is not a case for minimum punishment and higher punishment should have been awarded. He submitted that the provisions of Section 386 of the Cr. P.C. referred to the power of the appellate Court and it does not provide for the discretion or the power of the appellate Court to suo motu enhance the sentence after providing an opportunity to the accused. He referred to the provisions of Section 386 of Cr. He submitted that the provisions of Section 386 of the Cr. P.C. referred to the power of the appellate Court and it does not provide for the discretion or the power of the appellate Court to suo motu enhance the sentence after providing an opportunity to the accused. He referred to the provisions of Section 386 of Cr. P.C. and submitted that this is a fit case where not only the appeal is required to be dismissed, but perhaps sentence may be enhanced by the Court. In support of this submission he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in Prithipal Singh vs. State of Punjab, 2012 (1) SCC 10 and emphasized the observations made quoting the earlier judgment of the Hon'ble Apex Court reported in Surendra Singh Rautela vs. State of Bihar, AIR 2002 SC 360 : 2002 (1) SCC 266 : "It is well settled that the High Court, suo motu in exercise of revisional jurisdiction can enhance the sentence of an accused awarded by the trial Court and the same is not affected merely because an appeal has been provided under Section 377 of the Code for enhancement of sentence and no such appeal has been preferred." Learned A.P.P. Shri Jani therefore submitted that the appeal may be dismissed. 10. In view of this rival submissions, it is required to be considered whether the present Appeal deserves consideration and whether the impugned judgment and order recording the conviction of the accused calls for any interference by this Court. 11. The contentions which have been raised with regard to the false implication is required to be considered. Though, the submissions have been made referring to the testimony of the defence witnesses particularly the sister and father, there is no basis for any such bogey which is sought to be raised. In fact the totality of the facts and circumstances and the material evidence on record clearly reflect about the fact that the accused has been trying to raise the contentions and take the defence and has also adopted all the recourse reflecting his attitude. The contention that it was a holiday for the tuition is also without any basis as no such theory is suggested to the witnesses during trial and it is not put to the witnesses. 12. The contention that it was a holiday for the tuition is also without any basis as no such theory is suggested to the witnesses during trial and it is not put to the witnesses. 12. The another facet of the submission that the two cousins (minor) were with the victim, and therefore, they are the eye-witnesses who could have been examined as they were the best witnesses, and therefore, they have been withheld is misconceived. As it transpires, admittedly there was three children and others had not come. The victim was asked to get the match box from inside and the accused followed her and committed the offence and even gagged her mouth so that no scream or noise is heard outside. Further, she was threatened when she was allowed to go that if she convey to anybody, she will face the consequence and she would be beaten next day in the Madarsa. Therefore, considering the position of the accused as a Teacher and Molvi to whom the victim had gone for tuition and has faced with this situation. She was under a pressure which could be appreciated that she could not even conveyed to the mother initially. It is only when the mother saw her clothes stained with blood at night tried to get the truth and in presence of her aunt she revealed everything and disclosed about the incident. There is no reason for the victim who is aged only nine years to tell any such false story for implication of the accused. Further, the contention has been raised about false implication without any basis. However, the testimony of the minor victim corroborated by the medical evidence regarding injury cannot be overlooked merely because such a contention is sought to be raised about false implication without any basis or justification. Further on one hand such bogey of false implication is raised, on the other hand according to the theory of defence there was some settlement through Sarpanch which was reduced to writing and payment of Rs. 50,000/-. This itself would reflect that there was a serious matter which the accused and his family tried to defuse and it only reflects the conduct of the accused that even after the offence he did not remain silent nor he had any repentance but had left no stone unturned to cover up the entire episode. 50,000/-. This itself would reflect that there was a serious matter which the accused and his family tried to defuse and it only reflects the conduct of the accused that even after the offence he did not remain silent nor he had any repentance but had left no stone unturned to cover up the entire episode. The medical evidence in the form of testimony of Dr. Ashok Kumar Gupta P.W. 7 and the medical evidence Exh. 34 clearly suggest that at the first instance the history of the rape was conveyed. Dr. Ashok Kumar Gupta in his testimony at Exh. 32 had clearly stated that while recording the history the victim has narrated the incident about the rape committed on her when she had gone for the tuition to the house of the accused. He has also corroborated the testimony of the victim about the injuries that were received by the minor victim.. The testimony of Dr. Dipak Thakkar P.W. 11 at Exh. 51 further corroborates the fact that the offence was committed and the minor victim was subjected to such act. The Sarpanch P.W. 12 in his testimony at Exh. 53 has also corroborated the writing which was executed for settlement, on the contrary suggest about the fact that it was an effort to cover-up the episode. Therefore, the testimony of the victim which is found to be reliable and trustworthy further corroborated by the medical evidence cannot be doubted and the impugned judgment and order recording the conviction cannot be said to be erroneous which would call for any interference. 13. The Hon'ble Apex Court in a judgment reported in case of Rajinder @ Raji vs. State of Himachal Pradesh, 2009 (16) SCC 69 quoting from the earlier judgment of the Hon'ble Apex Court reported in case of State of Rajasthan v. N.K. 2000 (5) SCC 30 has observed: "For the offence of rape as defined in Section 375 of the Indian Penal Code, 1860, the sexual intercourse should have been against the will of the woman or without her consent. Consent is immaterial in certain circumstances covered by clauses thirdly to sixthly, the last one being when the woman is under 16 years of age. Consent is immaterial in certain circumstances covered by clauses thirdly to sixthly, the last one being when the woman is under 16 years of age. Based on these provisions, an argument is usually advanced on behalf of the accused charged with rape that absence of proof of want of consent where the prosecutrix is not under 16 years of age takes the assault out of the purview of Section 375 of the Indian Penal Code. Certainly consent is no defence if the victim has been proved to be under 16 years of age. If she be of 16 years of age or above, her consent cannot be presumed; an inference as to consent can be drawn if only based on evidence or probabilities of the case. The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent, has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable." 14. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of State of Punjab vs. Gurmit Singh, 1996 (2) SCC 384 and subsequent judgment reported in Wahid Khan v. State of Madhya Pradesh, 2010 (2) SCC 9 . The Hon'ble Apex Court in the judgment in case of State of Punjab vs. Gurmit Singh, 1996 (2) SCC 384 , has observed: "A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case." Further, it has been observed: "The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances." 15. Therefore, the another aspect with regard to the sentence and the submission made by learned Advocate Shri Baghel that the accused has undergone the sentence though he has been awarded minimum sentence, and therefore, some lenient view may be taken is required to be considered. On the other hand, learned A.P.P. Shri H.L. Jani relying on the provisions of Section 386 of Cr. P.C. has emphasized that even if the enhancement appeal is not filed by the State, the Court may consider the suo motu enhancement of the sentence relying on the judgment of the Hon'ble Supreme Court reported in case of Prithipal Singh vs. State of Punjab, 2012 (1) SCC 10 . This has a reference to the aspect of penology and the doctrine of proportionality of sentence. The Sessions Court while awarding the sentence has considered this aspect and though on one hand observed that minimum sentence may not be awarded has awarded only minimum sentence already considering the mitigating circumstances. Therefore, considering the offence of rape particularly on the minor victim and position of the accused as Molvi and Teacher committing such heinous act on the victim child who has gone to him for tuition hardly calls for any kind of indulgence/leniency on the aspect of sentence. Moreover, considering the observations of the Hon'ble Apex Court in the case of Siriya @ Shri Lal vs. State of Madhya Pradesh, AIR 2008 SC 2314 , the Courts have to consider the social impact of such offences and too lenient a view will be counter-productive. The Hon'ble Apex Court in the judgment reported in the case of Siriya @ Shri Lal, AIR 2008 SC 2314 , has discussed and observed: "7. The law regulates social interests, arbitrates conflicting claims and demands. The Hon'ble Apex Court in the judgment reported in the case of Siriya @ Shri Lal, AIR 2008 SC 2314 , has discussed and observed: "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. 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 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 vs. State of Tamil Nadu, 1991 (3) SCC 471 ." 16. Therefore, the Court is required to consider the doctrine of proportionality while imposing or considering the sentence as to whether it is commensurate with the seriousness and gravity of the offence. In the facts of the case though the learned A.P.P. has pressed the provisions of Section 386 Cr. P.C. to enhance the sentence suo motu. The interest of justice would be served having regard to the facts and circumstances that the present appeal deserves to be dismissed and the submissions made by learned Advocate Shri Baghel for modification of the sentence can hardly be justified in background of the facts and circumstances. Further, the submission made by learned A.P.P. Shri H.L. Jani for enhancement are also not accepted. Therefore, considering the aforesaid facts and circumstances and the submissions canvassed by both the sides, the present Appeal deserves to be dismissed and accordingly stands dismissed. The order passed by learned Sessions Judge, Bharuch dated 23-10-2008 recording conviction of the accused for the offence under Sections 376(2)(f) read with Section 506 I.P.C. is hereby confirmed. Misc. Criminal Application No. 800 of 2015 is also stands dismissed in view of the order passed in the main matter.