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2015 DIGILAW 823 (GUJ)

State of Gujarat v. Dipesh

2015-08-24

G.B.SHAH, K.S.JHAVERI

body2015
Judgment K.S. Jhaveri, J. 1. Heard learned Additional Public Prosecutor for the appellant - State Mr. L.R. Pujari and learned Advocate for the opponent/respondent Mr. Pratik B. Barot. 2. By way of this Appeal, the State has felt aggrieved by the judgment and order dated 21.11.2009 of the learned Additional Sessions Judge, Junagadh in Sessions Case No. 105/2008 whereby the respondent herein was convicted and sentenced as under:-- Under Sections 363 and 366 of the Indian Penal Code Acquittal Under Section 376 of the Indian Penal Code Rigorous imprisonment for four years and fine of Rs. 11,000/-, in default, simple imprisonment for 30 days. The accused was given the benefit of set off. The State has preferred this Appeal for enhancement of sentence only. 3. The case in brief and the incident which is alleged to have occurred on 16.08.2008 is as under:- 3.1. The complainant Bhupatbhai Dhanjibhai Ghosiya, Caste: Ghediya Koli, registered a complaint against the present accused with Junagadh 'B' Division Police station for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. It is the case of the prosecution that the complainant was residing at Sardarpara, Opp. Suryamandir, Murlidhar Society, Junagadh and was serving in a factory. He had two children - one daughter and a son. His daughter - Pooja aged about 14 years was studying in the 10th standard. 3.2. On 16.08.2008 at about 4.00 pm, the complainant's daughter Pooja had gone for tuitions and had not returned home till 7.00 pm. The complainant searched for his daughter but could not find her. It came to the knowledge of the complainant that the accused herein had induced and coerced his minor daughter and then allegedly committed the above cited offences. Thereafter, the police started investigation. After completion of investigation, the chargesheet was filed against the accused for the above cited offence and the case was triable by Court of Sessions, the learned Magistrate committed the case to the Sessions Curt at Junagadh where it was numbered as Sessions Case No. 105/2008. Thereafter charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit PW1 Dr. Kamuben D. Sagathiya 9 PW2 Dr. Thereafter charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit PW1 Dr. Kamuben D. Sagathiya 9 PW2 Dr. Kiranben V. Patel 13 PW3 Ashwinkumar Mohanlal 18 PW4 Arvind Gordhanbhai 21 PW5 Himmatibhai Ghusabhai 25 PW6 Bhupatbhai Dhanjibhai 27 PW7 Manjuben Bhupatbhai 29 PW8 Prosecutrix 30 PW9 Prakashbhai Jagdish 31 PW10 Nagbhai Jagmalbhai 32 PW11 Maganbhai Fakrubhai 37 PW12 Mohamedali Sulaiman 42 PW13 Sanjeev Suryakumar 47 PW14 Sharad Nanalal 51 The prosecution also relied upon various documentary evidences, some of them are:- Particulars Exhibit Regarding Physical examination of the accused 10 Medical Certificate of the accused 11 Regarding sending of the samples in respect of the physical examination of the accused 12 Regarding Physical examination of the victim 114 Medical Certificate of the victim 15 Opinion of Radiologist 16 Yadi regarding the samples taken from the body of the victim 17 Original Complaint 28 Yadi regarding handing of further investigation 34 Yadi for the birth Certificate 38 Receipt regarding the receipt of muddamal 40 F.S.L. Report 44 Results of the analysis of the serological 46 Birth Certificate 48 Extract of the Birth and Death Registrar 49 Regarding addition of Section 376 of the code 52 3.4. At the conclusion of the trial, the learned Additional Sessions Judge, Junagadh passed the order as above. 4. Learned Additional Public Prosecutor Mr. L.R. Pujari has submitted that the State has desired to prefer this Appeal for enhancement of sentence passed by the learned Judge. It is submitted that the learned Judge has erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed a grave error. 4. Learned Additional Public Prosecutor Mr. L.R. Pujari has submitted that the State has desired to prefer this Appeal for enhancement of sentence passed by the learned Judge. It is submitted that the learned Judge has erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed a grave error. It is also submitted that the learned Judge ought to have imposed maximum sentence to the present accused as provided under Section 376 of the Indian Penal Code, which reads as under:-- "Whoever, except in the case provided for by Sub-Section (2) commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term, which may extend to two years or with fine or with both." However, the learned Judge without doing so committed a grave error in imposing meagre sentence as stated herein. From the available material and facts and circumstances of the case, it is submitted that the accused deserves maximum sentence as provided under the aforesaid provision of the Code. In addition, it is submitted that the learned Judge failed to appreciate that there is no mitigating circumstance to impose less than ten years sentence and it is very clear from the facts and circumstances of the case available on the record of the case that there are aggravating circumstances in which the learned Judge ought to have imposed the maximum sentence as provided under law. In view of the above, it is submitted that this is a fit case which requires the interference of the Court and the judgment and order of the learned Additional Sessions Judge, Junagadh requires to be upturned. 5. Per contra, learned Advocate for the respondent Mr. Pratik B. Barot has submitted that the facts and circumstances of the case require no interference by this Court and has assailed the judgment and order of the learned Additional Sessions Judge, Junagadh. 5.1. 5. Per contra, learned Advocate for the respondent Mr. Pratik B. Barot has submitted that the facts and circumstances of the case require no interference by this Court and has assailed the judgment and order of the learned Additional Sessions Judge, Junagadh. 5.1. Learned Advocate for the respondent has placed reliance on the following decisions:- Jarnail Singh v. State of Punjab reported in (1998) 8 SCC 629 wherein relevant part of the decision reads as under:-- "The finding recorded by the courts below is that offence under Section 376IPC was made out solely on the ground that the prosecutrix was below 16 years of age (found to be around 15 years of age) even though she was a willing party to go with the appellant and have sex with him. The appellant, on the other hand, was found to be of 17 years of age. Evidently, the appellant and the prosecutrix, in the flush of youth, have committed an act which is a crime insofar as the appellant is concerned. Since it was one-time act and not a continuous course of conduct, we, having regard to this aspect as also the young age of the appellant, reduce his sentence of imprisonment to the period already undergone under both counts, i.e. under Sections 376 and 366 IPC, but add a fine of Rs. 12,000 to the count under Section 376 while sustaining the fine of Rs. 500 imposed under Section 366 together with the default clause. Incase there is default in payment of the fine now added, then he shall undergo further imprisonment equivalent to the unexpired portion of his sentence as imposed by the High Court. The fine of Rs. 12,000 is paid or recovered, shall be paid over to Sarabjit Kaur, the prosecutrix, as compensation. The Court of Session is to oversee compliance." State of Chhatisgarh v. Lekhram reported in (2006) 5 SCC 736 . Relevant part of the decision reads as under:-- "16. The prosecutrix was a mature girl. She was married. She spent a few months in her in-laws place. The respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the respondent on a false plea that he would marry her. She was married. She spent a few months in her in-laws place. The respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the respondent on a false plea that he would marry her. She denied the said suggestion as presumably she was aware that she being married, the question of her marrying the respondent again may not arise. She lived for some time with the respondent in a rented house. Both the courts proceeded on the basis that she was a consenting party. The occurrence took place in the year 1986. The respondent preferred an appeal before the High Court in the year 1987. The same remained pending for about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delaying in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one-and-a-half years. In the peculiar facts and circumstances of this case and having regard to the fact that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the appellant back to prison." 6. We have heard learned Advocates appearing for the respective parties and perused the records of the case. From the record, it appears that the accused has completed the sentence way back on 01.12.2011. For the sake of brevity, we are not producing the entire evidence and discussing the evidence because there were no legal submissions on the minimum sentence. 7. At this stage, it is relevant to refer to the unamended provisions of Section 375 and 376 of the Indian Penal Code which reads as under:-- "375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-- First.--Against her will. Secondly.--Without her consent. Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Secondly.--Without her consent. Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.--With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.--when or without her consent, when she is under sixteen years of age." "376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever, - (a) being a police officer commits rape - (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a womans of children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution, or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years." 8. It is not in dispute that the victim was aged about 13 years, 9 months and 15 days, i.e. less than 14 years at the relevant time. The minimum sentence that was to be awarded was seven years but against the above, the Trial Court has given a sentence of just four years and even no reasons are assigned for the same. 9. Further, the decisions relied on by learned Advocate for the respondent, i.e. Jarnail Singh (supra) and State of Chhatisgarh (supra) would not apply to the facts of the case as admittedly the prosecutrix in this case was less than 14 years. 10. 9. Further, the decisions relied on by learned Advocate for the respondent, i.e. Jarnail Singh (supra) and State of Chhatisgarh (supra) would not apply to the facts of the case as admittedly the prosecutrix in this case was less than 14 years. 10. In the aforesaid circumstances, this Appeal preferred by the State is partly allowed. While confirming the judgment and order of conviction, the sentence imposed upon the respondent - accused vide judgment and order dated 21.11.2009 of the learned Additional Sessions Judge, Junagadh in Sessions Case No. 105/2008 for the offence punishable under Section 376 of the Indian Penal Code, is enhanced from four years to seven years. It is reported that the accused is on bail and therefore, he is directed to surrender before the jail authorities within a period of eight weeks from today, to serve the above period of enhanced sentence. Bail bond stands cancelled. The impugned judgment and order dated 21.11.2009 of the learned Additional Sessions Judge, Junagadh in Sessions Case No. 105/2008 stands modified to the above extent. Record and proceedings, be sent to the concerned Trial Court forthwith. Appeal Partly Allowed.