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2016 DIGILAW 902 (GUJ)

Ramesh Bijal Marwada v. State of Gujarat

2016-04-26

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. The present appeal is directed against the impugned judgment and order rendered in Sessions Case No. 29/2010 by the Additional Sessions Judge, Gandhidham-Kutch dated 27.12.2011 recording conviction of the appellant-accused for the offence under Sections 363 and 376 of the Indian Penal Code imposing sentence as stated in detail in the impugned judgment and order. 2. The fact of the case briefly summarized are as follows:-- "2.1 The complainant-father lodged complaint that on 06.03.2010, after the dinner, he along with his family including the victim were sleeping in the house, however on 07.03.2010, the complainant had gone for his work, where he received phone call in the morning that the victim-daughter of the complainant was not found in the house and, therefore, inquiry was made at the house of the accused, who is neighbour and was informed that the accused had also left early in the morning stating that he is going out for the labour work. Therefore, the complaint came to be filed being C.R. No. I-8/2010 with Kandala Police Station for the offence under Sections 363 and 366 of the Indian Penal Code. After the victim was found, the report was made for adding Section 376 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 statement of the accused under Section 313 of the Code of Criminal Procedure, 1973. 2.5 After hearing learned APP as well as learned advocate for the defence, the Sessions Judge passed impugned judgment and order recording conviction as stated therein." 3. It is this judgment and order which has been assailed in the present appeal on the grounds stated in the memo of appeal. 4. Heard learned advocate, Shri Ashish Dagli for the appellant-accused and learned APP Ms. Hansa Punani for the respondent-State. 5. Learned advocate, Shri Dagli referred to the testimony of the victim, PW-10 at Exh. 29 and submitted that she has stated that she knew the accused and she is said to have accompanied the accused voluntarily. 4. Heard learned advocate, Shri Ashish Dagli for the appellant-accused and learned APP Ms. Hansa Punani for the respondent-State. 5. Learned advocate, Shri Dagli referred to the testimony of the victim, PW-10 at Exh. 29 and submitted that she has stated that she knew the accused and she is said to have accompanied the accused voluntarily. Learned advocate, Shri Dagli also referred to demeanor of the witness (victim) noted by the Court. He submitted that as could be seen from the testimony of the victim, they have moved from place to place, where she had sufficient opportunity to raise alarm or asked for the help and she has never asked for any help suggesting her consent. Learned advocate, Shri Dagli also submitted that as stated in the testimony, in fact, they had married in a temple and, therefore, it suggests the consent. 6. It was further submitted that though the victim is said to be minor, the prosecution has failed to prove the age of the victim beyond reasonable doubt. Learned advocate, Shri Dagli submitted that if the age of the victim is not specifically proved that she was minor, the benefit should go to the accused. He also referred to the testimony of the complainant-father and also the medical evidence. He also submitted that the age of the victim would be relevant and the prosecution has examined the Principal of the school, PW-19 at Exh. 54. He submitted that during the investigation, the papers or the evidence was not collected and, thereafter, this witness has been examined, who has brought the original register and extract of which is produced at Exh. 55. He pointedly referred to Exh. 55, which is school leaving certificate accompanied by the extract of register produced by the PW-19, Exh. 54. He submitted that though the name of the victim is mentioned and the date of birth is recorded as 01.06.1994. It is not clear as to who has given this date. He submitted that she was admitted in this school subsequently and, therefore, based on that record, entry is made in this register and the school leaving certificate at Exh. 55. Learned advocate, Shri Dagli strenuously submitted that if the specific evidence is not made available with regard to the entry in the school leaving certificate about the date of birth, mere production of these documents would not be sufficient. 55. Learned advocate, Shri Dagli strenuously submitted that if the specific evidence is not made available with regard to the entry in the school leaving certificate about the date of birth, mere production of these documents would not be sufficient. He has also referred to the judgment of the Hon'ble Apex Court in case of State of Madhya Pradesh v. Munna @ Shambhoo Nath, reported in (2016) 1 SCC 696 in support of his submissions. 7. Learned advocate, Shri Dagli further submitted that in any case, as could be seen from the testimony of the victim, PW-10 at Exh. 29 and also the medical evidence in the form of testimony of PW-12, Exh. 34, who has given the certificate at Exh. 35 as a Medical Officer, General Hospital Bhuj, the ossification test is not carried out. Similarly, he referred to the testimony of Dr. Makwana, PW-13 at Exh. 37 and submitted that in the cross-examination, the doctor has admitted that there was no marks of injury found on the victim and he has stated in his certificate at Exh. 40 that there was no sign of recent intercourse. Therefore, learned advocate, Shri Dagli submitted that the testimony of victim has to be considered regarding her conduct for ascertaining her consent. He submitted that it is evident that she had moved voluntarily and though she had sufficient opportunity, she has not raised any alarm or voice nor has asked for help suggesting her voluntariness and consent. He therefore submitted that only aspect regarding the age, which is required to be considered, is again not established beyond reasonable doubt as parents have not specific about the age of the victim and the school leaving certificate as stated above cannot be said to be recording the date of birth. Learned advocate, Shri Dagli submitted that in any case, she would have attained the age of discretion and, therefore, considering the background of the facts and circumstances, even if the conviction is maintained, sentence may be modified or reduced considering the young age of the appellant. 8. Learned APP Ms. Punani referred to the papers and submitted that from the testimony of the victim, PW-10 at Exh. 29 even if it is suggested that she had voluntarily accompanied or has not shown any resistance, fact remains that she is minor. Learned APP Ms. 8. Learned APP Ms. Punani referred to the papers and submitted that from the testimony of the victim, PW-10 at Exh. 29 even if it is suggested that she had voluntarily accompanied or has not shown any resistance, fact remains that she is minor. Learned APP Ms. Punani therefore submitted that it is well settled that the consent of the minor would not be relevant as the minor would not be competent nor is expected to have that maturity and understanding regarding the consequences of such act. She therefore submitted that once it is found and established that the victim was minor, the conviction and sentence is justified and requires to be sustained. She further submitted that though the submissions have been made that the prosecution has not proved the age of the victim beyond reasonable doubt, same is required to be considered on the basis of the material and evidence on record. She submitted that in fact, the prosecution has examined the Principal of the school, PW-19 at Exh. 54, who had brought the original register of the school, where entry regarding the admission of child is made along with date of birth. She pointedly referred to Exh. 55, which is a school leaving certificate and the extract of the register recording the date of birth of the victim as 01.06.1994. 9. Learned APP Ms. Punani submitted that as the original register has been produced from the proper custody, who has deposed regarding the date of birth of the victim on the basis of the material and evidence, it cannot be brushed aside. Learned APP Ms. Punani submitted that mere some doubt is sought to be raised, who gave the information about the date of birth is neither here or there and, therefore, it cannot be said that the prosecution has failed to establish about the age of the victim when the certificate is produced and original register of the school recording birth date is produced. Learned APP Ms. Punani submitted that had there been any doubt, the defence could have raised the objection and in fact, would have asked for the ossification test, which has not been resorted to. She therefore submitted that it is too late now to raise any such grievance. Learned APP Ms. Punani submitted that had there been any doubt, the defence could have raised the objection and in fact, would have asked for the ossification test, which has not been resorted to. She therefore submitted that it is too late now to raise any such grievance. She, therefore, submitted that there is no reason to discard the evidence of the prosecution and the impugned judgment and order recording conviction and sentence is just and proper. 10. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 11. As it transpires from the material and evidence on record, the testimony of the victim, PW-10 at Exh. 29 requires closer scrutiny inasmuch as she has clearly stated that she knew the accused for two years. In fact the manner in which the incident has occurred support the submission made by learned advocate, Shri Dagli about the affair. The victim in her testimony at Exh. 29 has stated that she had received a phone and then she accompanied the accused and they moved from place to place. Therefore while noting the demeanor of the witness (victim), the aspect of consent or voluntariness is required to be considered. However, the moot question is that whether the victim was minor or not inasmuch as the consent would not be relevant if the victim is minor. 12. Therefore considering the background of the facts and the evidence in the form of medical evidence, though there are no marks of injuries and the victim is said to have accompanied from place to place, the consent of the victim, who is minor, would not be relevant. As stated above, when there is a specific evidence with regard to the age of the victim recorded in the register produced by the Principal, who has deposed before the Court and when there is a specific evidence, it cannot be brushed aside merely because some issue is sought to be raised as to who had given the date of birth and the mother is not clear as she has not stated specifically. Moreover, the prosecution having examined PW-19 at Exh. Moreover, the prosecution having examined PW-19 at Exh. 54, the Principal of the school, who has stated on the basis of the record, which is coming from the proper source, it cannot be brushed aside merely because some contentions are sought to be raised with regard to the age of the victim. Again every such contention raising doubt would not be a reasonable doubt. Further opportunity was available to the defence regarding the ossification test, which has not been availed and, therefore as rightly submitted by learned APP, it is too late in light of the day now to raise any such contention about the age of the victim. 13. The submission that the victim had voluntarily accompanied the accused may not be accepted. Further the submission that she had attained the age of discretion is also misconceived in light of the statutory provisions for the offence under Section 363 and 366 of the Indian Penal Code, which have been considered and interpreted by the Hon'ble Apex Court in judicial pronouncements. In fact, the provisions of Section 363of 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. The Hon'ble Apex Court in a judgment in case of Thakorlal D. Vadgama v. The State of Gujarat, reported in (1973) 2 SCC 413 referring to the provision of Section 361 of the Indian Penal Code has 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." 14. 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." 15. 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." 14. 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." 15. Therefore, the moot question is whether there was a consent by the victim and she was not a minor is required to be considered. For that purpose, the Court has to consider the word "consent", which has been considered by the Hon'ble Apex Court in a judgment in the case of Uday v. State of Karnataka reported in (2003) 4 SCC 46 . Thus it would imply that there has to be a free and voluntary consent without any threat or compulsion. 16. Jowitt's Dictionary on English Law has defined consent in the following words: "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. Moreover, for the purpose of offence under Section 376 of the Indian Penal Code, it requires appreciation of evidence and the conduct of the victim and the accused which has to be deduced from the surrounding circumstances. The Court is required to scrutinize and scan the entire record and evidence on record. Moreover, while scanning the evidence, the Court has to consider and appreciate the evidence as to whether the manner in which it is said to have been committed or the incident has taken place inspires confidence and whether it sounds logical with the conduct of a young human being in the given circumstances. There may not be any straight-jacket formula on this aspect to ascertain about the consent as to whether it is free consent or not. Thus it requires a consent, which could be said to be legal and valid as minor is not competent to give consent as it is not expected that minor would have maturity and understanding about the consequence of the act. 18. Thus it requires a consent, which could be said to be legal and valid as minor is not competent to give consent as it is not expected that minor would have maturity and understanding about the consequence of the act. 18. Therefore, once it is established that the victim is minor, the judgment and order recording conviction cannot be said to be erroneous and aspect of consent would hardly be relevant. 19. Another facet of submission made by learned advocate, Shri Dagli referring to the age of the accused and the aspect of sentence deserves consideration. However, the provision of Section 376 of the Indian Penal Code provides that the Court may award less than minimum sentence for the special and adequate reasons. The special and adequate reasons oblige the Court to consider the material and evidence and the factor like age of the victim and also the age of the accused, whether they have settled in life and other relevant circumstances. In the facts of the case, as discussed above, consent may not be relevant for the purpose of offence. Therefore, the present appeal deserves to be allowed only to the extent of modification/reduction of the sentence while maintaining the conviction as it is. 20. Therefore while considering the alternate submission regarding the modification of the sentence, the Court has to balance the impact on the crime on society and the proportionality in punishment. There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. It could be a combination of any of them, which could be a goal of sentencing policy. The Courts have therefore evolved the doctrine of proportionality in sentence. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Narinder Singh v. State of Punjab, reported in (2014) 6 SCC 466 . It has been observed, "Whereas in various countries, sentencing guidelines are provided, statutorily or otherwise, which may guide Judges for awarding specific sentence, in India we do not have any such sentencing policy till date." 21. However as stated above, the doctrine of proportionality in sentence has been evolved, where it is left to the discretion of the Court depending upon the facts and circumstances. Again the discretion would suggest judicial discretion. However as stated above, the doctrine of proportionality in sentence has been evolved, where it is left to the discretion of the Court depending upon the facts and circumstances. Again the discretion would suggest judicial discretion. The Hon'ble Apex Court in a judgment in case of Aero Traders (P) Ltd. v. Ravinder Kumar Suri, reported in (2004) 8 SCC 307 , wherein it has been observed, "6............ According to Black's Law Dictionary "judicial discretion" means the exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word "discretion" connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination,...................... " 22. Further, a useful reference can be made to the observations made by the Hon'ble Apex court in a judgment in case of Dhananjoy Chatterjee @ Dhana v. State of W.B., reported in (1994) 2 SCC 220 , wherein it has been observed, "14. In recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. 15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment." 23. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Satishkumar Jayantilal Dabgar v. State of Gujarat, reported in (2015) 7 SCC 359 as well as in case of Mohd. Ali @ Guddu v. State of Uttar Pradesh, reported in (2015) 7 SCC 272 . 24. Therefore, the present appeal stands allowed partly. The impugned judgment and order recording conviction of the appellant-accused for the offence under Section 363of the Indian Penal Code imposing sentence is hereby maintained as it is. However, the sentence imposed upon the appellant-accused for the offence under Section 376 of the Indian Penal Code as per impugned judgment is modified to RI for 5 years instead of RI for 7 years. Both the aforesaid sentences shall run concurrently. The applicant is on bail and, hence, his bail bond stands cancelled and he is directed to surrender before the jail authority within a period of eight weeks from today.