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2015 DIGILAW 829 (GUJ)

Vipulbhai Gandabhai Senma v. State of Gujarat

2015-08-24

RAJESH H.SHUKLA

body2015
JUDGMENT : The present Appeal is directed against the judgment and order in Sessions Case No. 50 of 2009 passed by the learned Additional Sessions Judge, Fast Track Court, Mahesana, Camp at Visnagar dated 5.9.2009 recording the conviction of the accused for the offence under Section 376 of the Indian Penal Code imposing the sentence of RI for 10 years and fine of Rs.60,000/- i.d. RI for 2 years and 6 months. The facts briefly summarized are as follows. 2. As it transpires from the material and evidence on record, the accused is alleged to have committed the offence of rape on the victim girl aged about 14 years when she was returning from the school. It is the case of the prosecution that the victim was studying in High School at Kansarfui, village Becharpura. It is stated that as the bicycle was locked she had gone on a foot to her school on 9.2.2009. Thereafter in the evening at five when she was returning after the school and when she was passing near the bushes, near the deep of the river, the accused came there and asked her to go with him. The victim had refused suggesting that he may inquire from her sister and thereby she could get a chance to go away. However, the accused is said to have dragged her in the bushes and gagged her mouth, overpowered her and committed the offence under Section 376, IPC. It is also stated that initially the victim resisted with her school bag and thereafter she had also shouted and the accused ran away after committing the offence. She returned to the house and the family members on inquiry learnt about the incident and called emergency mobile van and took her to the Visnagar Civil Hospital where the complaint was registered being FIR No. 29 of 2009 with Visnagar Police Station for the offence under Section 376, IPC. 3. After the investigation was over, the charege-sheet was filed and as the offence under Section 376, IPC is triable by the Court of Session, the case was committed to the Court of Session. Thereafter the learned Sessions Judge framed the charge for the offence and proceeded with the trial. 4. 3. After the investigation was over, the charege-sheet was filed and as the offence under Section 376, IPC is triable by the Court of Session, the case was committed to the Court of Session. Thereafter the learned Sessions Judge framed the charge for the offence and proceeded with the trial. 4. In order to bring home the charges levelled against the accused, the prosecution examined the witnesses including the victim and the mother and produced the documentary evidence which shall be referred to hereinafter. 5. After recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge recorded the further statement of the accused under Section 313 of Cr.P.C. 6. After hearing the learned APP as well as learned Advocate for the accused, the learned Sessions Judge, Mahesana, Camp at Visnagar recorded the conviction of the accused and sentenced him as stated herein above. 7. It is this judgment and order which has been assailed in the present Appeal on the grounds stated in the memo of appeal inter alia that the learned Sessions Judge has committed an error while recording the conviction of the accused. 8. Heard learned Advocate Shri P. B. Khambholja for the Appellant-Accused. He submitted that the testimony of the victim PW-1 at Exh.7 is not corroborated by the medical evidence as there were no injuries though she has stated about the forcible act. Learned Advocate Shri Khambholja tried to emphasize that on one hand she has stated that there were bruises and there were marks but the medical evidence (injury certificate) does not show any mark of injury either on the person of the victim or the accused. He therefore tried to submit that there was a consent and in fact she had consented earlier also. He therefore submitted that the court below has failed to appreciate this aspect. He also referred to the complaint at Exh.8. He also referred to the testimony of PW-2 Dr. Sumitbhai Pravinbhai Patel, Medical Officer at Exh.9. He submitted that the victim had volunteered and consented which is also stated by this witness while recording the history of the accused. He further submitted that the injury certificate of the accused produced at Exh.10 clearly records this. Similarly, he referred to the testimony of PW-3 Dr. Devendravan Nathuvan Goswami at Exh.11 (Medical Officer), Visnagar and submitted that he had examined the victim. He further submitted that the injury certificate of the accused produced at Exh.10 clearly records this. Similarly, he referred to the testimony of PW-3 Dr. Devendravan Nathuvan Goswami at Exh.11 (Medical Officer), Visnagar and submitted that he had examined the victim. He pointedly referred to the testimony as well as the injury certificate produced at Exh.12 and submitted that there are no marks of injuries. He submitted that if the incident had occurred in the manner as stated then she would have offered the resistance as stated by her and there would have been some marks of injuries left either on the body of the victim or the accused. Learned Advocate Shri Khambholja however submitted that the Medical Officer has not supported the version of the victim as could be seen from the testimony of this witness and the injury certificate. He therefore submitted that it is a clear case of consent. Learned Advocate Shri Khambholja also tried to submit that even if the victim was minor she had attained the understanding and therefore the court below ought to have appreciated this aspect. He therefore submitted that the conviction could not have been recorded and even if the conviction was recorded, the circumstances including the consent of the victim could have been considered for the purpose of punishment and it should have been considered on the ground that the accused is also a young person. He therefore submitted that the present appeal may be allowed. Learned Advocate Shri Khambholja also submitted that while maintaining the conviction, the sentence may be modified to the extent of sentence undergone. 9. Learned APP Shri H. L. Jani however referred to the papers and the background of the facts. He pointedly referred to the testimony of the victim and submitted that she has categorically stated as to what has transpired. He submitted that even before the Doctor while giving the history, the victim has maintained the same version. He submitted that the Doctor who has examined has also clearly stated that she has stated about the incident that she was raped by the accused. He therefore submitted that there is no question of any consent when the victim herself has stated on oath about the incident and the manner in which it had occurred. He submitted that the Doctor who has examined has also clearly stated that she has stated about the incident that she was raped by the accused. He therefore submitted that there is no question of any consent when the victim herself has stated on oath about the incident and the manner in which it had occurred. Learned APP Shri Jani further submitted that merely because the injuries are not found on the body would not be sufficient to brush aside the testimony of the victim where she has categorically stated about the manner in which the incident had occurred. He submitted that the injury is not a sine qua non as observed by the Hon’ble Apex Court in many pronouncements. In support of this he has referred to and relied upon the judgment of the Hon’ble Apex Court reported in (2004) 3 SCC 106 : ( AIR 2004 SC 2884 ) in case of Dastagir Sab and Anr. v. State of Karnataka. Learned APP has also submitted that in fact the incident is not disputed as the accused has also confirmed about the incident. Learned APP Shri Jani referred to the injury certificate of the accused at Exh.10 and submitted that while giving the history, he himself has stated and disclosed before the Doctor about the incident though the version may be different. He therefore submitted that this would be an extra judicial confession and in any case as the age of the victim is 14 years, meaning thereby she was minor, the consent would not be relevant at all. Learned APP Shri Jani therefore submitted that the fact that the victim was minor, this aspect would not have any relevance and therefore the judgment and order recording the conviction is just and proper. He submitted that the sentence awarded is also minimum considering the age of the accused and therefore there is no justification for further reduction or modification in the sentence while maintaining the conviction as suggested by the learned Advocate for the Appellant. 10. In view of this rival submissions, it is required to be considered whether the present appeal deserves consideration and whether it could be entertained. 11. The submissions have been made by the learned Advocate Shri Khambholja on two aspects. One about the consent and the another about the injury part suggesting that it would imply a consent. 10. In view of this rival submissions, it is required to be considered whether the present appeal deserves consideration and whether it could be entertained. 11. The submissions have been made by the learned Advocate Shri Khambholja on two aspects. One about the consent and the another about the injury part suggesting that it would imply a consent. As could be seen from the record as well as the submission it is not in dispute that the incident had taken place, meaning thereby the accused had dragged the victim and had done the intercourse forcibly. The submission that as there is no injury found on the body of the victim or the accused, a consent could be inferred is also misconceived. It is well settled that the injury is not a sine qua non inasmuch as in many cases the victim is so overpowered that she is not able to give much resistance. In the facts of the present case, the victim in her testimony has specifically stated that initially she did offered resistance with her school bag and thereafter the incident had occurred and the accused had ran away after the act. Thus, the injury to the victim is found as stated in the medical certificate and she had also disclosed to the Doctor while giving the history. Thus, the factum of incident is not in dispute. Therefore, the only issue is sought to be joined on the aspect of consent. Again it is not in dispute that the victim was minor aged about 14 years, therefore the consent would not be relevant. The Hon’ble Apex Court has made the observations on this aspect. The provisions of Section 375 (six) IPC provide: '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: Sixthly.— With or without her consent, when she is under sixteen years of age.' Therefore, it would be an offence under Section 376 when such an act is committed on minor and the consent would not be relevant at all. Further the victim in her testimony as well as even before the Doctor while giving the history has not suggested about any consent or voluntariness in the act. Further the victim in her testimony as well as even before the Doctor while giving the history has not suggested about any consent or voluntariness in the act. Therefore the submission made by learned Advocate Shri Khambholja to draw an inference merely because there is no injury cannot be readily believed or accepted. It may be noted that injury is not sine qua non in such cases. The Hon’ble Apex Court in a judgment in case of Dastagir Sab ( AIR 2004 SC 2884 ) (supra) has observed that that the injury is not a sine qua non in every case. It is to be considered with the background of the facts and the circumstances in each case. Thus, there may not be any injury like in the present case and therefore it cannot be presumed that there is no offence. The victim may be too fragile to offer any resistance or may have been so overpowered and therefore there may not be any injury. 12. A useful reference can be made to the judgment of the Hon’ble Apex Court in a judgment reported in (2009) 16 SCC 69 : ( AIR 2009 SC 3022 ) in case of Rajinder alias Raji v. State of Himachal Pradesh wherein the same issue was discussed that the medical evidence does not corroborate the case of sexual intercourse or the rape. Further, the submission made that the testimony of the victim may not be accepted without corroboration is also misconceived. The Hon’ble Apex Court in a judgment in case of State of Punjab v. Gurmit Singh & Ors. reported in (1996) 2 SCC 384 : ( AIR 1996 SC 1393 ) has 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. ......................................................... 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.' 13. Further, the FSL report confirms about the act as the vaginal smear confirms about the presence of the semen and the blood of the accused and therefore the submission made by the learned Advocate Shri Khambholja cannot be accepted. 14. The another facet of the submission about the consent as stated above is hardly relevant. Further, one more aspect which has been emphasized by learned Advocate Shri Khambholja that while maintaining the conviction the sentence may be modified considering the age of the accused and also the manner in which the offence is said to have committed. Though these submissions have been made, it is required to be mentioned that the sentence awarded is the minimum sentence for the offence. The Hon’ble Apex Court in various judicial pronouncements has observed time and again that less than minimum sentence may not be awarded unless there are special reasons to be recorded in writing. Further, the offence committed on a minor victim and the sentence awarded cannot be said to be disproportionate in light of the nature of the offence and the manner in which it is committed when the young girl is returning to home in a village from the school she is dragged to the bushes and the offence is committed. Moreover, considering the observations of the Hon’ble Apex Court in the case of Siriya alias Shri Lal v. State of M.P., reported in 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 alias Shri Lal (supra) 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. 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 etc. v. State of Tamil Nadu [ 1991(3) SCC 471 ] 15. Therefore, the court is also 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 present case, the sentence awarded cannot be said to be disproportionate which would call for any leniency and therefore the alternate submission for modification of the sentence cannot be accepted. 16. In the result, the present Appeal deserves to be dismissed and accordingly stands dismissed. The impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court, Mahesana, Camp at Visnagar in Sessions Case No. 50 of 2009 dated 5.9.2009 recording the conviction of the accused for the offence under Section 376 of the Indian Penal Code is hereby confirmed. The present Appeal therefore stands dismissed. Appeal dismissed.