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2016 DIGILAW 451 (GUJ)

Jayeshbhai Sureshbhai Vyas v. State of Gujarat

2016-02-25

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Present appeals assail the judgment and order dated 30/07/2005, passed by the learned Presiding Officer, Main Fast Track Court, Rajkot, in Sessions Case No. 149 of 2004, whereby, original accused, the appellant of Criminal Appeal No. 2022 of 2005, came to be convicted for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and for the offences punishable under Sections 363 and 366 of the IPC, sentenced to undergo rigorous imprisonment for three years, whereas, for the offence punishable under Section 376 of the IPC also, he was sentenced to undergo rigorous imprisonment for three years. The accused was also fined to the tune of Rs. 5,000/- with a default clause to undergo further simple imprisonment for one month, if failed to pay fine. Accordingly, Criminal Appeal No. 2313 of 2005 has been filed by the State for enhancement of sentence, whereas, Criminal Appeal No. 2022 of 2005 has been filed by the original accused against conviction. 2. Brief facts of the prosecution case are that on 17/09/2004 at about 13:15 hours, the accused abducted the victim, the minor aged about 16 years, the daughter of complainant - Jamnaben Kanjibhai Solanki, residing in Chunarawad Street No. 1, Near Bhattha on the river bank at Rajkot, from their lawful possession, brought her to village: Tarkasar and then to Surat and also to Gondal and forcibly raped her repeatedly. Thus, the accused committed the crime alleged against him 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 at Rajkot. 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 accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under: ORAL EVIDENCE Sl. No. Name if witness Exh. 1 Jamnaben Kanjibhai 13 2 Victim 15 3 Dr. Kavita J. Dave 21 4 Shriram Rampyare Shukla, PSO 25 5 Vasudevbhai Jagjivan 28 6 B.D. Jadeja, IO 31 7 Dr. No. Name if witness Exh. 1 Jamnaben Kanjibhai 13 2 Victim 15 3 Dr. Kavita J. Dave 21 4 Shriram Rampyare Shukla, PSO 25 5 Vasudevbhai Jagjivan 28 6 B.D. Jadeja, IO 31 7 Dr. R.R. Sharma 46 8 Umesh B. Matravadiya 53 DOCUMENTARY EVIDENCE Sl. No. Document Exh. 1 Police Yadi 22 2 Medical Certificate of the victim 23 3 OPD case papers 24 4 Deputy Order 26 5 Extract of Station Diary Entry No. 13/04 27 6 True copy of General Birth Registrar 29 7 True copy of Leaving Certificate of the victim 30 8 Original complaint 32 9 Panchnama of place of incident 33 10 Arrest panchnama 34 11 Letter of FSL 35 12 Muddamal Despatch Note 36 13 Sample of seal 37 14 Authorization Certificate 38 15 Letter of FSL 39 16 Seizure Panchnama of the motorcycle 40 17 Letter to FSL 41 & 42 18 FSL Report 43 19 Biological Report 44 20 Serological Report 45 21 Police Yadi 47 22 OPC case papers 48 23 Birth Certificate 54, 56, 57 2.4 At the end of the trial, Further statement of the accused under Section 313 of Criminal Procedure Code, 1973 (for brevity, 'the Code') was recorded in which, he pleaded not guilty and claimed that he was falsely implicated in the crime. Thus, after recording above-referred Further Statement and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused, 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 State as well as the accused have preferred the present appeals for enhancement of sentence and against conviction, respectively. 3. We have heard Ms. C.M. Shah, learned Additional Public Prosecutor for the State and Mr. Pratik Barot, learned advocate for the accused. 3.1 Mr. Barot, the learned advocate for the accused, submitted that the trial Court has committed a grave error in convicting the accused. It was contended by him that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led before it and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the accused. It was contended by him that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led before it and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the accused. He submitted that taking into account the evidence of PW-2, the victim, exh. 15, evidence of PW - 1 - Jamnaben Kanjibhai, the complainant and mother of the victim, exh. 13 and also the evidence of PW-3 - Dr. Kavita J. Dave, exh. 21, the Birth Certificate of the victim, exh. 57 and other such documents forthcoming on the record, the prosecution has not proved the case against the appellant - accused beyond reasonable doubt. He submitted that in the Birth Certificate, produced at exh. 57, the name of the victim is not referred. Without prejudice to the rights and contentions of the accused, the learned advocate for the accused submitted that, in any case, this is a case of consent and accordingly, for the aforesaid submissions, made by the learned advocate for the accused, it is requested this Court to interfere in the appeal and allow the appeal against conviction, filed by the accused and dismiss the appeal of the State for enhancement of sentence. 4. Whereas, Ms. Shah, learned Additional Public Prosecutor, for the State, while supporting the judgment and order so far as conviction part to the accused is concerned, contended that when the offence is already proved by the prosecution against the accused beyond reasonable doubt, the trial Court has committed an error in imposing lesser punishment to the accused. Moreover, she submitted that looking to the provisions of the extant law itself, it is clear that minimum punishment prescribed for the offence punishable under Section 376 of the IPC is imprisonment of seven years and accordingly, the trial Court has committed an error in awarding lesser punishable for such a grave offence, without assigning any cogent and sufficient reasons, where the victim is a minor girl of less than 16 years of age. She took us to the oral as well as documentary evidence on record, more particularly, the School Leaving Certificate of the victim, produced at exh. She took us to the oral as well as documentary evidence on record, more particularly, the School Leaving Certificate of the victim, produced at exh. 30 and contended that the same clearly bears the name and the birth date of the victim and accordingly, the trial Court has rightly held the present accused guilty for the offences alleged against him. Last but not least, Ms. Shah, learned Additional Public Prosecutor, submitted that the State has filed the appeal for enhancement of sentence and the offence is already proved against accused beyond reasonable doubt and when, the trial Court has dealt with each and every aspect of the matter minutely, this Court may not interfere so far as conviction is concerned. However, so far as sentence imposed by the trial Court upon the accused is concerned, the minimum sentence provided for the offence punishable under Section 376 of the IPC is, imprisonment for seven years and accordingly, the learned trial Judge has erred in imposing lesser punishment and this Court may accordingly allow the appeal and sentence may suitably be enhanced. 5. We have 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 have also gone through the impugned judgment and order. In view of the evidence of PW-1 - complainant and mother of the victim namely Jamnaben Kanjibhai, exh. 13, evidence of PW-2, the victim, exh. 15 and the medical evidence and other oral as well as the documentary evidence on record, we are of the opinion that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Moreover, taking into consideration the discussion made by the learned trial Judge in the impugned judgment and order in detail, we find that the trial Court, while considering the evidence on record, has very elaborately discussed the evidence adduced before it and thereafter, has come to such a conclusion. Further, the learned advocate for the accused is not in a position to show any evidence to take a contrary view in the matter or 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 the material evidence on record. Further, the learned advocate for the accused is not in a position to show any evidence to take a contrary view in the matter or 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 the material evidence on record. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order and we are in complete agreement with the reasonings given and the findings arrived at by the trial Court. 5.1 Now, so far as aspect of sentence imposed by the trial Court of three years' rigorous imprisonment is concerned, looking to the provision of the extant law, in our opinion, the same appears to be lesser and inadequate and the same is required to be enhanced, as minimum sentence prescribed for the offence under the law, is seven years of imprisonment and to that extent, the impugned judgment and order of the trial Court is required to be modified and the sentence to the accused is required to be enhanced accordingly. 5.2 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 Uttarakhand, 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. 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 attractability 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 rationalised 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. 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. 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. 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. 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"." 6. In view of the aforesaid discussion, Criminal Appeal No. 2313 of 2005, filed by the State for enhancement of sentence, succeeds and the impugned judgment and order dated 30/07/2005, passed by the learned Presiding Officer, Main Fast Track Court, Rajkot, in Sessions Case No. 149 of 2004, is modified to the aforesaid extent and it is held that, for the offence punishable under Section 376 of the IPC, the accused shall have to undergo seven years' rigorous imprisonment, instead of three years, as has been awarded by the trial Court. The accused is reported to have been on bail and accordingly, his bail bond shall stand cancelled and he is directed to surrender to custody within 12 (twelve) weeks from today to undergo the remaining sentence, failing which, the concerned investigating agency shall be at liberty to take appropriate actions, in accordance with law. He may be given set off of the period he has already undergone. The rest of the judgment and order shall remain unaltered. The Criminal Appeal No. 2022 of 2005, filed by the accused against conviction, shall accordingly stand dismissed. Registry to return the R&P to the trial Court forthwith.