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2016 DIGILAW 783 (GUJ)

Rakesh v. State of Gujarat

2016-04-07

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. Both the present appeals arise out of the impugned judgment and order rendered in Sessions Case No. 154/2010 by the Additional Sessions Judge, City Civil & Sessions Judge, Ahmedabad recording conviction of both the appellants herein of both appeals imposing sentence and fine as stated in detail in the impugned judgment. 2. The fact of the case briefly summarized are as follows:- "2.1 On 19.11.2009, the minor daughter of the complainant is said to have been enticed away by the appellant-original accused No. 1 (of Criminal Appeal No. 615/2011) and the appellant-original accused No. 2 (of Criminal Appeal No. 497/2011) is said to have abetted in the said offence. The appellant-original accused No. 1 (of Criminal Appeal No. 615/2011) is said to have committed alleged offences and, therefore, the complaint came to be filed by the complainant, which has been registered as C.R. No. I-413/2009 with Ramol Police Station for the offences under Sections 363 and 366 of the Indian Penal Code. 2.2 After the investigation was over, the charge-sheet for the alleged offences came to be filed and as the offences were triable by the Court of Sessions, it was committed to the Court of Sessions. 2.3 Thereafter, the Court below proceeded with the trial and recorded the evidence of the prosecution witnesses. 2.4 After recording of the evidence of the prosecution witnesses was over, the Court below recorded further statements of the accused under Section 313 of the Code of Criminal Procedure, 1973. 2.5 After hearing learned APP as well as learned advocates for the defence, the Sessions Judge passed impugned judgment and order recording conviction as stated therein." 3. Heard learned advocate, Ms. Sadhna Sagar appearing for the appellant-original accused No. 1 in Criminal Appeal No. 615/2011, learned advocate, Shri A.V. Prajapati appearing for the appellant-original accused No. 2 in Criminal Appeal No. 497/2011 and learned APP Ms. Hansa Punani for the respondent-State in both appeals. 4. Learned advocate, Ms. Sagar referred to the testimony of the witnesses including the testimony of the victim PW-1, Exh. 13. She submitted that she has stated that she had decided to elope with the original accused No. 1 and, therefore, they had eloped and the offence under Section 363 of the Indian Penal Code regarding enticing away would not be attracted. She also referred to the testimony of the victim, Exh. 13. She submitted that she has stated that she had decided to elope with the original accused No. 1 and, therefore, they had eloped and the offence under Section 363 of the Indian Penal Code regarding enticing away would not be attracted. She also referred to the testimony of the victim, Exh. 13 and submitted that they had moved from place to place, which sufficiently establish that though she had every opportunity to raise alarm or asked for the help, she did not raise alarm suggesting her consent and voluntariness. Learned advocate, Ms. Sagar also referred to the testimony of PW-7, Dr. Yasmin at Exh. 27, who had examined the victim. Learned advocate, Ms. Sagar emphasized her testimony, wherein it has been stated that while she has examined the victim, the victim herself has stated to her while giving history that the victim was knowing the original accused No. 1 since 6-7 months and is friendly and they had developed relations and love affairs. She has also stated as to how they eloped and moved from one place to place. Learned advocate, Ms. Sagar pointedly referred to her testimony to emphasis that the relationship and sexual and physical relation was consensus as stated by her. She submitted that no mark of injury was found and considering the injury certificate and the case papers, the offence of rape is not made out. Learned advocate, Ms. Sagar submitted that she had voluntarily left and, therefore, the offence under Sections 363 and 366 of the Indian Penal Code are not attracted. 5. Learned advocate, Ms. Sagar also referred to the judgment in case of Baldev S/o Kachore vs. State of U.P. 1993 (2) Cr. L.J. 1915 and emphasized the observations made in para No. 36 and submitted that the victim had attained the age of discretion. For that, she pointedly referred to the observations in para Nos. 18 and 20. Learned advocate, Ms. Sagar referred to the judgment in case of Lawrence Kannandas vs. State of Maharashtra, 1983 Cr. L.J. 1819 and pointedly referred to the Head Note and submitted that as observed, there is no evidence, by which, it could be said that she was abducted. She also referred to the testimony of PW-12, Dr. Chunilal Kumavat at Exh. 37, who had examined the accused and submitted that the injury to the accused is not explained by the prosecution. She also referred to the testimony of PW-12, Dr. Chunilal Kumavat at Exh. 37, who had examined the accused and submitted that the injury to the accused is not explained by the prosecution. She has also referred to the testimony of other witnesses including the testimony of one Mukeshbhai Thakkar, PW-13 at Exh. 39, who is an employee of the Corporation. Learned advocate, Ms. Sagar submitted that the certificate of birth is obtained subsequently after the incident and it raises doubt. Learned advocate, Ms. Sagar submitted that ossification test is not carried out and, therefore, the judgment and order recording conviction may not be sustained. Learned advocate, Ms. Sagar also referred to the testimony of Investigating Officer, PW-17 at Exh. 47 and submitted that as stated by him, school leaving certificate and other documentary evidence are not produced though obtained, which raises some doubt and there is no explanation. Learned advocate, Ms. Sagar has also referred to and relied upon the judgment in case of Lavjiji S/o Chaturji Kamaji Thakore vs. State of Gujarat, 2014 (2) GLH 153 and also judgment of the Hon'ble Apex Court in case of State of Punjab vs. Rakesh Kumar, (2008) 12 SCC 33 . 6. Learned advocate, Ms. Sagar alternatively submitted that sentence may be modified or reduced and also submitted that it may be modified from SI to RI so that the appellant can avail of the remission. Learned advocate, Ms. Sagar also submitted that while maintaining conviction, sentence may be reduced or modified for the special reasons, for which, she referred to the judgment of the Hon'ble Apex Court in case of State of Chhattisgarh vs. Lakhram, (2006) 5 SCC 736 and in case of Satish Kumar Jayantilal Dabgar vs. State of Gujarat, (2015) 7 SCC 359 . 7. Learned advocate, Shri Prajapati for the appellant-original accused No. 2 in Criminal Appeal No. 497/2011 has adopted the submissions made by learned advocate, Ms. Sagar for the appellant-original accused No. 1 in Criminal Appeal No. 615/2011. However, he submitted that the role attributed for the appellant-original accused No. 2 is limited and, therefore, he has been convicted for the offence under Section 363 of the Indian Penal Code and not for the offence under Section 376 of the Indian Penal Code and the less sentence is also accordingly imposed. However, he submitted that the role attributed for the appellant-original accused No. 2 is limited and, therefore, he has been convicted for the offence under Section 363 of the Indian Penal Code and not for the offence under Section 376 of the Indian Penal Code and the less sentence is also accordingly imposed. However, learned advocate, Shri Prajapati submitted that even for the conviction, it has to be established that he has abetted. Learned advocate, Shri Prajapati submitted that there is no evidence regarding abetment as she had voluntarily left her own house. Learned advocate, Shri Prajapati referred to the impugned judgment, more particularly, the observations made in para Nos. 30 and 36 and submitted that it has been observed that the appellant-original accused No. 2 is said to have abetted in the commission of the offence by the original accused No. 1, however, it has also been observed that except for providing or making arrangement for the shelter, the appellant-original accused No. 2 is not attributed with any other role and his presence is not established as observed and, therefore, he has been acquitted for the offence under Section 376 of the Indian Penal Code. He therefore submitted that considering the role and the background of the facts, the conviction may not be sustained. 8. Alternatively, learned advocate, Mr. Prajapati submitted that mitigating circumstances like he is the bread winner and he has family to support, may also be considered. 9. Learned APP Ms. Punani referred to the papers and submitted that first aspect which is required to be considered, is the age of the victim. She submitted that admittedly the victim was minor which has been clearly established by the testimony of the officer of the Corporation, PW-13 at Exh. 39. It was submitted that the birth certificate is produced at Exh. 41, where the date of birth is mentioned as 28.04.1995 and, therefore, she was minor. Learned APP Ms. Punani submitted that if there was any doubt with regard to the age, same could have been raised at the trial and the appellants could have specifically asked for the ossification test. Further it was submitted that when the birth certificate was produced and accepted pursuant to the testimony of PW-13, Exh. 39, no objection was raised and, therefore, now it cannot be permitted at the belated stage as the appellants have missed the bus. 10. Further it was submitted that when the birth certificate was produced and accepted pursuant to the testimony of PW-13, Exh. 39, no objection was raised and, therefore, now it cannot be permitted at the belated stage as the appellants have missed the bus. 10. Further, learned APP Ms. Punani submitted that the victim though has stated that she had eloped with the appellant-original accused No. 1, again the issue would be whether she was capable for giving consent and her consent and voluntariness cannot be said to be a free consent. Learned APP Ms. Punani submitted that it is well accepted that if the victim is minor, her consent is not relevant as she may not have discretion about the understanding the consequence of the act. Therefore, it was submitted that even though she has stated about voluntariness, fact remains that the appellant-original accused No. 1 (of Criminal Appeal No. 615/2011) lured her and taking advantage of the minority has exploited and, therefore, the conviction, which has been recorded, is just and proper. It was submitted that because of her age, the victim may not be aware about the consequence and, therefore, law presumes that such consent will not be free consent or valid consent for the purpose of offence under Sections 375 and 376 of the Indian Penal Code. Therefore, learned APP Ms. Punani submitted that if the aspect of consent is required, it will have to be considered with reference to the age. She further submitted that when it has been established that she was minor, consent would not be relevant and, therefore, the offence under Section 376 of the Indian Penal Code would be attracted as necessary ingredients are fulfilled. She, therefore, submitted that the submissions made by learned advocate, Ms. Sagar that as she has voluntarily accompanied the original accused No. 1 (of Criminal Appeal No. 615/2011), the offence under Sections 363 and 366 of the Indian Penal Code are not attracted, may not be accepted. Again learned APP Ms. Puani submitted that the submission made by learned counsel referring to the observations made in the judgment regarding the age of discretion etc. may not be relevant in light of the statutory provision and the pronouncement of the Hon'ble Apex Court. Learned APP Ms. Again learned APP Ms. Puani submitted that the submission made by learned counsel referring to the observations made in the judgment regarding the age of discretion etc. may not be relevant in light of the statutory provision and the pronouncement of the Hon'ble Apex Court. Learned APP Ms. Punani referred to the judgment in case of Raja Ram (supra) and submitted that it cannot be said that the offence under Section 363 of the Indian Penal Code is not attracted as she has voluntarily accompanied the original accused No. 1 and in fact, the provision of Section 363 of the Indian Penal Code clearly provides that the offence is committed if a minor is taken away or enticed away from the lawful custody without the consent of the guardian with such promise to marry etc. 11. Learned APP Ms. Punani again referred to the judgment of the Hon'ble Apex Court in case of Thakorlal D. Vadgama vs. State of Gujarat, (1973) 2 SCC 413 , particularly, referred to the provision of Section 361 of the Indian Penal Code, it has been observed, "In the case cited reference has been made to some English decisions in which it has been stated that forwardness on the part of the girl would not avail the person taking her away from being guilty of the offence in question and that if by moral force a willingness is created in the girl to go away with the former, the offence would be committed unless her going away is entirely voluntary. Inducement by previous promise or persuasion was held in some English decision to be sufficient to bring the case within the mischief of the statute." 12. Further, it has been observed: "The word "entice" seems to involve the idea of inducement or allurement, by giving rise to hope or desire in the other." 13. In this judgment, the words "taking and entice" have been discussed for the purpose of considering the offence. 14. Learned APP Ms. Punani submitted that therefore once it is established that the victim was minor and the act is established, which is also not in dispute, the conviction and the sentence are just and proper. It was submitted that the conviction has been recorded and the sentence which has been awarded is minimum sentence and, therefore, the present appeal may not be entertained. 15. It was submitted that the conviction has been recorded and the sentence which has been awarded is minimum sentence and, therefore, the present appeal may not be entertained. 15. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 16. From the discussion made hereinabove and background of the facts and appreciation of material and evidence clearly suggests that the victim was minor. This aspect about the age of the victim is established by the prosecution by testimony of PW-13, Exh. 39, who produced the birth & death register and the certificate at Exh. 41. Therefore when admittedly the victim is minor, consent would not be relevant. The submissions about the age of the discretion and the voluntariness or the consent of the victim are misconceived. It is well settled that while considering the aspect of the offence of rape, the aspect of consent would be relevant. Again for that purpose, age is very relevant as consent by minor would not be relevant as minor is not competent to give consent. The Hon'ble Apex Court in catena of judicial pronouncements has referred to this aspect that in order to ascertain the consent, it has to be free and voluntary consent, which is legal and valid. In other words, it has to be a consent as acceptable legally. In the facts of the case, when the Law provides for the age of 16 years for the purpose of consent for the offence under Sections 375 and 376 of the Indian Penal Code, the underlying legislative purpose or the policy is required to be considered. The Legislature in its wisdom has provided for such age that a minor would not be competent to understand and appreciate the consequences of the act and, therefore, her consent is not regarded as relevant while deciding the aspect of consent for the offence of rape. Further, it is required to be considered that the Legislature in other similar piece of legislation has also provided for the age of minority like the Guardian and Wards Act, Hindu Marriage Act etc. Therefore the minor is not competent to give consent as minor could not have that much maturity and understanding to appreciate about the consequences of the act. Therefore the minor is not competent to give consent as minor could not have that much maturity and understanding to appreciate about the consequences of the act. Therefore the provision of Section 363 of the Indian Penal Code, which clearly provides for enticing away the minor from the guardianship of the guardian itself presupposes about the consent or permission of the guardian and not consent of the minor. Again for the purpose of legal consent or valid consent, a useful reference can be made to the Jowitt's Dictionary on English Law, which has defined the word 'consent' as follows: "Consent supposes three things, a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion and not as a deliberate and free act of the mind." 17. Thus the consent as required under a Law can be considered to be a valid consent. Therefore the submissions made by learned advocate, Ms. Sagar cannot be believed or accepted though it may sound appealing but it may not be acceptable in legal scrutiny. 18. Therefore once it is established that the victim was minor, her consent would not be relevant and, therefore, the offence as provided under the Statute is committed, for which, there is no doubt about the act having been committed by the appellant-original accused No. 1 (of Criminal Appeal No. 615/2011). The injury certificate of the accused at Exh. 38 refers to his own version while stating history and has admitted about the act with the consent of the victim. Therefore the impugned judgment recording conviction of the appellant-original accused No. 1 (of Criminal Appeal No. 615/2011) cannot be said to be erroneous. 19. However the submissions made by learned advocates on the aspect of the mitigating circumstances and reduction or modification of the sentence require a closer scrutiny. The submissions have been made by learned advocate, Ms. Sagar that the sentence may be converted from SI to RI so as to enable the accused to earn remission, also require to be considered. The reliance has been placed on the judgment of the High Court in case of Lavjiji S/o Chaturji Kanaji Thakore, 2014 (2) GLH 153 and the judgment of the Hon'ble Apex Court in case of Rakesh Kumar (supra). The reliance has been placed on the judgment of the High Court in case of Lavjiji S/o Chaturji Kanaji Thakore, 2014 (2) GLH 153 and the judgment of the Hon'ble Apex Court in case of Rakesh Kumar (supra). It is necessary to strike a balance between wrong and the offence on one hand demanding imposition of the rational and logical punishment and on the other hand, it may have bearing on the accused, who may be in his prime youth. Therefore, it would have a reference to the doctrine of proportionality in sentence. The Court has to consider various relevant circumstances like need to deal with the offence and sweeping changes in the law, which have been introduced reflecting the legislative intention to curb such offence with an iron hand, which in turn affect the dignity of a woman. However, the punishment will have bearing on the accused and may ruin his career and prospect in life. Therefore, the Court has to consider the basic philosophy of three aspects of punishment like deterrent, retributive or reformative. 20. The Hon'ble Apex Court has made observation referring in a judgment in case of Rakesh Kumar (supra) referring to the aspect of doctrine of proportionality and it has been observed: "9. 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 corner-stone 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 the 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. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the 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. For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh vs. State of M.P. (1987) 2 SCR 710 , this Court while refusing to reduce the death sentence observed thus: "It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon." 21. However at the same time, it has also been observed: "Proportion between crime and punishment is a goal Respected in principle and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. After giving due consideration to the facts and Circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha vs. State of California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished." 22. It is in this background, all these observations are suggesting broad guidelines. The Courts have to balance mitigating circumstances and the crime and its impact on the society. This has led to evolution of the doctrine of the proportionality in sentence. The doctrine of proportionality in the criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct and it would permit the court to reflect upon the consideration of the culpability and the facts of each case. Sometimes, the corrective measures which are needed for the perpetrator of the offence, are offered to justify a sentence. The Courts are required to consider not only the right of the accused but the right of the victim as a whole. Sometimes, the corrective measures which are needed for the perpetrator of the offence, are offered to justify a sentence. The Courts are required to consider not only the right of the accused but the right of the victim as a whole. At the same time, it must reflect upon the various facts like cross cultural effects, overall scenario prevailing in the society with the change in the social norms, liberalized attitude in life, more ex-posers of the children to the media and other surroundings, which in turn will effect on their getting matured early, there could be side effect of such environment and atmosphere in the society leading to the issues, which can be better addressed in a social engineering. However while considering the aspect of punishment, though it is a crime, the Court cannot overlook the reality and the social scenario prevailing in the society. This would justify as stated above some amount of a reasonable and corrective approach in a given case though it cannot be said to be a general proposition. However, special and adequate circumstances may have to be considered in background of the facts of each case. In the present case, affidavit, which has been given by learned advocate, Ms. Sagar of the victim and the accused, wherein the victim is said to have stated that she has settled in the life and she has no reservation if the aspect of punishment is considered liberally. Therefore it could be considered as a special and adequate circumstances for exercise on judicial discretion for modification in the sentence. 23. Therefore the interest of justice would be served if Criminal Appeal No. 615/2011 filed by the appellant-original accused No. 1 is allowed partly to the extent of modification of the sentence while maintaining conviction as it is. Therefore while maintaining conviction as it is, the sentence is modified to RI of five years instead of seven years for the reasons as stated above, which could be considered as special and adequate reasons or circumstances for modification of the sentence to less than minimum sentence provided by the Statute. 24. Further so far as the appellant-original accused No. 2 (of Criminal Appeal No. 497/2011) is concerned, as discussed hereinabove, while referring to the aspect of doctrine of proportionality and special and adequate circumstances, the Court has referred to the peculiar background of the facts. 24. Further so far as the appellant-original accused No. 2 (of Criminal Appeal No. 497/2011) is concerned, as discussed hereinabove, while referring to the aspect of doctrine of proportionality and special and adequate circumstances, the Court has referred to the peculiar background of the facts. The role attributed to the appellant-original accused No. 2 has been confined to that of abatement or providing shelter to the accused for the offence and he has, therefore, been acquitted of the main charges for the offence under Section 376 of the Indian Penal Code as his presence is also stated to be doubtful. Therefore he has been convicted for the lesser sentence imposed upon him and, hence, sentence imposed upon him deserves to be modified to the extent of the sentence already undergone by him. Therefore a useful reference can be made to the judgments of the Hon'ble Apex Court in case of Satishkumar Jayantilal Dabgar vs. State of Gujarat, (2015) 7 SCC 359 as well as in case of Mohd. Ali @ Guddu vs. State of Uttar Pradesh, (2015) 7 SCC 272 . 25. In the circumstances, Criminal Appeal No. 615/2011 filed by the appellant-original accused No. 1 is partly allowed. While maintaining conviction as it is, the punishment imposed upon the appellant-accused for the offence under Section 376 of the Indian Penal Code is hereby modified and reduced to RI for five years instead of SI for seven years. All other sentences imposed upon the appellant-original accused No. 1 for the offence under Sections 363 and 366 of the Indian Penal Code will remain unaltered. The appellant-original accused No. 1 is on bail and, hence, his bail bond stands cancelled and he is directed to surrender before the jail authority within a period of four weeks. 26. Criminal Appeal No. 497/2011 filed by the appellant-original accused No. 2 is partly allowed. While maintaining conviction for the offence under Sections 363 and 366 of the Indian Penal Code, the sentence imposed upon the accused for the said offence is modified to the extent of the sentence already undergone by him. The appellant-original accused No. 2 is on bail and, hence, his bail bonds shall stand cancelled. Therefore, the appellant-original accused No. 2 is ordered to be set at liberty forthwith, if not required in any other offence.