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2016 DIGILAW 563 (GUJ)

State of Gujarat v. Bahadursinh Devubha Vadher

2016-03-10

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT K.S. Jhaveri, J. 1. This appeal is filed against the judgment and order passed by the learned Addl. Sessions Judge, Jamnagar in Sessions Case No. 83/1998 dated 17.04.1999 whereby, the respondent, original accused, has been convicted for the offence punishable u/s. 376 r/w. Section 511 IPC and has been sentenced to undergo RI for five years and fine of Rs. 1000/- and in default, SI for three months. The sentence already undergone by accused was given set-off. 2. The facts in brief are as under; "Bhartiben Batukbhai Solanki, the original complainant, was residing along with her husband and children at Village Navagam. On 16.03.1998 the respondent-accused, who was residing in the neighborhood and used to frequently visit the house of complainant, came to the house of complainant at around 18:00 hrs. After spending some time at her home, the accused took the elder daughter of the complainant, aged around 07 years, to the market under the pretext of buying something for her. After about one hour, the accused returned to her house and dropped her daughter. After the accused left their house, the daughter, survivor herein, informed her mother that she was raped by the respondent." 3. A complaint in respect of the aforesaid incident was lodged with Jamnagar City 'B' Division Police Station. Necessary investigation was done and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated. 4. During the trial, the prosecution examined the following witnesses; Wt. No. Name of Witness Exhibit No. 1. Dr. Bindu Sainath 8 2. Dr. Rakhalchandra Gopalchandra Datta 12 3. Bhartiben Batukbhai Solanki 18 4. Survivor 21 5. Dilipkumar Madanlal Jhakhri 22 6. Somabhai Mohanlal Patel 27 5. The prosecution had produced and relied upon several documentary evidence, particularly, the Medical Certificate of accused at Exh. 12, Medical Certificate of survivor at Exh. 15, panchnama of clothes at Exh. 18, complaint at Exh. 30, copy of birth and death register at Exh. 34, birth certificate of survivor, FSL Report at Exh. 48 and Serological Report at Exh. 49. 6. 12, Medical Certificate of survivor at Exh. 15, panchnama of clothes at Exh. 18, complaint at Exh. 30, copy of birth and death register at Exh. 34, birth certificate of survivor, FSL Report at Exh. 48 and Serological Report at Exh. 49. 6. At the end of trial, the Court below recorded further statement of accused u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 7. Ms. C.M. Shah, learned APP, submitted that the sentence awarded by the Court below is illegal and erroneous since the age of the victim was around 07 years at the time when the offence was committed. She, therefore, submitted that the trial Court ought to have imposed the minimum punishment of ten years in view of the provisions of Section 511 IPC. 8. We have heard learned counsel for both the sides and perused the oral as well as documentary evidence on record. Learned counsel Mr. Barot appearing on behalf of the respondent-accused has not been able to dispute the proposition of law, as put forth by learned APP Ms. Shah. 9. It is a matter of fact that the survivor was around 07 years of age at the time when the offence was committed. There is no dispute regarding the fact that the respondent-accused is the author of the crime. The depositions of the survivor (PW-4) and complainant (PW-3) and the medical evidence on record establish the guilt of accused beyond reasonable doubt. 9.1 Moreover, recently, the Hon'ble Apex Court in the decision rendered in the case of Raj Bala v. State of Haryana and Others etc. passed in Criminal Appeal Nos. 1049 to 1050 of 2015, decided on 18/08/2015, observed in Paras-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. 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 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. 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. 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"." 10. Under the circumstances, the Court below ought not to have awarded the sentence of only 05 years for conviction u/s. 376 IPC in view of the provision of Section 511 IPC. In our opinion, the appropriate sentence which deserves to be imposed upon the respondent-accused is ten years. Hence, the impugned judgment and order deserves to be modified to the aforesaid extent. 11. For the foregoing reasons, the appeal is allowed. The impugned judgment and order dated 17.04.1999 convicting the respondent, original accused, u/s. 376 r/w. Section 511 IPC is confirmed but, insofar as the sentence part is concerned, the same is enhanced to RI for Ten Years from Five Years, without disturbing the order regarding fine and default sentence. The respondent-accused is on bail. His bail bonds stand cancelled and he is directed to surrender to custody on or before 08th July 2016. The impugned judgment and order stands modified accordingly.