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2016 DIGILAW 281 (GUJ)

State of Gujarat v. Santosh Ramprasad Gupta

2016-02-05

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals are preferred against the judgment and order dated 9.8.2004 passed by learned Additional Sessions Judge, Court No. 16, Ahmedabad City, in Sessions Case No. 293 of 2002, whereby the respondent-original accused was convicted for the offence punishable under Section 376 of the Indian Penal Code (for short, "IPC") and sentenced to suffer rigorous imprisonment for six months and ordered to pay fine of Rs. 1,000/- and, in default of payment of fine, the accused was ordered to undergo further rigorous imprisonment of fifteen days, however, the accused acquitted from the charges of offence punishable under Section 363 and 366 of IPC. Being aggrieved by imposition of sentence, the State has preferred Criminal Appeal No. 853 of 2005 under Section 377 of the Code of Criminal Procedure, 1973 for enhancement of sentence, while Criminal Appeal No. 850 of 2005 is preferred against acquittal of the accused from the charges of offence under Sections 363 and 366 of IPC. 2. The facts in brief giving rise to the filing of present appeal are as under:-- "2.1 As per the case of the prosecution, on 18.5.2002, when the victim was 15 years and 10 months old, at that time, the accused took her away from the legal guardianship of the complainant without his consent. Thereafter, the accused committed rape on her. With these allegations, the complaint was filed against the accused. 2.2 On complaint being filed, investigation was carried out and the accused was arrested in connection with the said offence. After completion of investigation, the charge sheet was filed against the accused in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:-- Sr. No. Name Exh. 1 Victim. 5 2 Ramavadh Algu Chauhan. 15 3 Keshavben Ramavadh Chauhan. 25 4 Dr.Sumanlal Bholanath Shrimali. 26 5 Daljibhai Dharmaji Thakor, IO. 27 6 Bhagvanbhai Gagubhai Bharvd, PSI. 28 2.4 The prosecution had also produced and relied upon following documentary evidence:-- Sr. No. Name Exhibit 1 FIR. 24 2 Report as per Section 157 of Cr.P.C. 16 3 Birth Certificate of the Victim. 17 4 Ration Card of the complainant. 25 4 Dr.Sumanlal Bholanath Shrimali. 26 5 Daljibhai Dharmaji Thakor, IO. 27 6 Bhagvanbhai Gagubhai Bharvd, PSI. 28 2.4 The prosecution had also produced and relied upon following documentary evidence:-- Sr. No. Name Exhibit 1 FIR. 24 2 Report as per Section 157 of Cr.P.C. 16 3 Birth Certificate of the Victim. 17 4 Ration Card of the complainant. 18 5 Panchnama of seizure of clothes of the Victim. 19 6 Panchnama of blood sample of the accused and the Victim. 20 7 Medical certificate of the accused. 21 8 Medical certificate of the victim. 22 9 Ossification test certificate. 23 10 Muddamal dispatch note. 6 11 Receipt of FSL. 7 12 Letter of FSL. 8 13 FSL report. 9 14 Serological report. 10 2.5 At the end of trial, the Court below recorded further statement of accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order of conviction, which has led to the filing of present appeals." 3. Learned APP, Ms. C.M. Shah appearing for the appellant-State has taken us through the oral as well as documentary evidence and contended that the victim in the present was below 16 years at the time of offence, therefore, even if she would have remained a consenting party, maximum sentence is required to be awarded to the accused. She also submitted that the accused had committed rape on the victim by giving false promises that he would marry her. She submitted that the trial Court has committed an error in imposing lesser sentence upon the accused inspite of voluminous evidence against him and also contended that the trial Court ought not to have imposed such a lesser punishment. She submitted that the prosecution has examined six witnesses in support of its case. The prosecution has also produced 14 documentary evidences on the record of the case. However, without appreciating those documentary as well as oral evidence available on the record of the case in their proper perspective, learned Judge has erred in imposing lesser punishment. She also submitted that though the accused is convicted by the trial Court for an offence punishable under Section 376 of IPC, the trial Court has committed an error in imposing punishment. She also submitted that the offence is serious in nature and no leniency should have been showed towards the accused. She also submitted that though the accused is convicted by the trial Court for an offence punishable under Section 376 of IPC, the trial Court has committed an error in imposing punishment. She also submitted that the offence is serious in nature and no leniency should have been showed towards the accused. She, therefore, submitted that the learned trial Judge has rightly convicted the accused, however, lesser sentence is imposed upon the accused. She further submitted that the learned Judge has also erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed grave error by imposing lesser punishment. She also submitted that the learned Judge ought to have imposed maximum sentence on the present accused as provided under Section376 of IPC. Hence, impugned judgment and order passed by learned Judge in imposing the lesser sentence deserves to be modified by this Hon'ble Court and the sentence imposed to the accused deserves to be enhanced to maximum sentence as provided under the aforesaid section. She also submitted that the learned Judge has failed to appreciate the seriousness of the offence committed by the accused while imposing the sentence. The learned Judge also failed to appreciate that there is no sufficient and reasonable cause for the learned Judge to impose lesser punishment. She also submitted that the learned Judge failed to appreciate that there is no any mitigating circumstance to impose less punishment and it is very clear from the facts and circumstances of the case and the material available on record of the case that there are aggravating circumstances in which Hon'ble Judge ought to have imposed the maximum sentence as provided under the law. 4. On the other hand, Mr. B.C. Dave, learned counsel for the respondent-accused has contended that the accused has been properly punished by the trial Court. He also submitted that the accused and the victim were in love with each other and the victim was a consenting party, therefore, the trial Court has not committed in awarding less punishment to the accused. He, therefore, submitted that the sentence imposed upon the accused by the impugned order may not be enhanced and prayed that this appeal may be dismissed. 5. He, therefore, submitted that the sentence imposed upon the accused by the impugned order may not be enhanced and prayed that this appeal may be dismissed. 5. So far as Criminal Appeal No. 850 of 2005 is concerned, which is preferred against acquittal of the accused from the charges of offences punishable under Section 363 and 366 of IPC, Ms. C.M. Shah, learned APP appearing for the State has taken us through the evidence and contended that the trial Court has committed an error in acquitting the accused inspite of voluminous evidence against him and contended that the trial Court ought not to have acquitted the accused. She submitted that the prosecution has successfully proved its case that the victim was illegally kidnapped by the accused with an intention to commit the offence. She submitted that it is proved that the victim was abducted by the accused with a false promise that he would marry her and thereafter sexual intercourse was done by the accused, therefore, the trial Court has committed an error in acquitting the accused. She submitted that the parents of the victim have supported the case of the prosecution and the trial Court has committed an error in not believing their evidence. She also submitted that even the prosecution witnesses have supported the case of the prosecution and there was no reason to dis-believe their version. She, therefore, prays that this appeal may be allowed by setting aside the impugned judgment. 6. On the other hand, Mr. B.C. Dave, learned counsel for the respondent-accused has contended that the trial Court has rightly appreciated the evidence on record and acquitted the accused of some of the charges levelled against him. It is also submitted that so far as acquittal appeals are concerned, the law is well settled and by taking us through the impugned judgment, he submitted that this Court may not interfere with the impugned judgment and the appeal may be dismissed. 7. We have heard Ms. C.M. Shah, learned APP appearing for the appellant-State as well as Mr. B.C. Dave, learned advocate for the respondent. We have also gone through the oral as well as documentary evidence on record. 7. We have heard Ms. C.M. Shah, learned APP appearing for the appellant-State as well as Mr. B.C. Dave, learned advocate for the respondent. We have also gone through the oral as well as documentary evidence on record. So far as Criminal Appeal No. 853 of 2005 is concerned, which is preferred for enhancement of sentence, we find that at the time when the alleged offence of rape is committed, as per the birth certificate of the victim, she was admitted below 16 years of age. At this stage, we may quote Section 375 of IPC, 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. 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.-With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 7.1 In the present case, it has come on record that the accused was below 16 years of age, therefore, even if she would have consented, her consent is of no value and the accused is rightly found to be guilty of the offence under Section 376 of IPC. however, the sentence imposed by the trial Court seems to be on lower side and it is required to be enhanced. 8. Moreover, recently, it has been held by the Hon'ble Apex Court in the decision in the case of Raj Bala v. State of Haryana and Others etc. etc. however, the sentence imposed by the trial Court seems to be on lower side and it is required to be enhanced. 8. Moreover, recently, it has been held by the Hon'ble Apex Court in the decision in the case of Raj Bala v. 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 Uttrakahand, 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 attract-ability 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 rationalized 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. 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. 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. 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. 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"." 8.1 Thus, in our opinion, the ends of justice would meet if the sentence imposed upon the accused is enhanced and if the accused is ordered to undergo imprisonment for three years instead of six months. Accordingly, Criminal Appeal No. 853 of 2005 preferred for enhancement of punishment is required to be allowed. 9. So far as Criminal Appeal No. 850 of 2005 is concerned, it has come on record that after going along with the accused, the victim came back after a long time and even at that time she has deposed after marriage with the accused, they had sexual relationship. However, in Exh. 12 letter, it is clearly stated by the victim that her parents were ready to get her married with the accused and this letter was written after the present complaint. Therefore, it is clear that the accused has not abducted the victim forcefully or by luring her. However, in Exh. 12 letter, it is clearly stated by the victim that her parents were ready to get her married with the accused and this letter was written after the present complaint. Therefore, it is clear that the accused has not abducted the victim forcefully or by luring her. Since victim went with the accused o n her own, the trial Court has not committed any error in acquitting the accused from the charges of offences punishable under Sections363 and 366 of IPC. Therefore, though the accused is found guilty for the offence under Sections 376of IPC, he is rightly acquitted from the charges of offences under Sections 363 and 366 of IPC. It cannot be said that the accused has committed the offences under aforesaid Sections. Therefore, the trial Court has rightly acquitted the accused of some of the charges levelled against him. In view of this and considering various decisions of Honourable Apex Court, when two views are possible, this Court should not interfere with the order of acquittal recorded by the trial Court. It is also required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 9.1 Further, in the case of Chandrappa v. State of Karnataka, (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 9.2 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 9.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under; "16. 9.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under; "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 9.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors., 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. State of M.P. reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal are well settled. 9.5 In the case of Luna Ram v. Bhupat Singh and Ors., (2009) SCC 749, the Apex Court in paras-10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 9.6 Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]" 9.7 It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka v. Hemareddy, AIR 1981, SC 1417, wherein it is held as under: "...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 10. Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary. Moreover, learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude 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 material evidence while acquitting the accused. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondent from some of the charges levelled against him. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain Criminal Appeal No. 850 of 2005. 11. For the foregoing reasons, Criminal Appeal No. 853 of 2005 is partly allowed. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain Criminal Appeal No. 850 of 2005. 11. For the foregoing reasons, Criminal Appeal No. 853 of 2005 is partly allowed. The impugned judgment and order dated 9.8.2004 passed by learned Additional Sessions Judge, Court No. 16, Ahmedabad City, in Sessions Case No. 293 of 2002 is modified and the sentence imposed by the impugned judgment for offence punishable under Section 376 of IPC is enhanced from six months' rigorous imprisonment to three years' rigorous imprisonment. Remaining part of the impugned judgment shall remain unaltered. The period of imprisonment already undergone by the accused shall be given set off to him. The accused shall surrender before the jail authorities within a period of twelve weeks from today to serve the remaining period of sentence. 12. Criminal Appeal No. 850 of 2005 is dismissed. The impugned judgment and order dated 9.8.2004 passed by learned Additional Sessions Judge, Court No. 16, Ahmedabad City, in Sessions Case No. 293 of 2002 acquitting the accused from the charges offence punishable under Sections 363 and 366 of IPC is hereby confirmed. 13. Bail bond, if any, stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.