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2017 DIGILAW 1533 (GUJ)

Somaji Udaji Parmar v. State of Gujarat

2017-09-04

P.P.BHATT

body2017
JUDGMENT : P.P. BHATT, J. 1. Learned advocate Mr. Y.J. Patel states that he has instructions to appear on behalf of the victim-original complainant and he will file his Vakalatnama. Registry is directed to accept his Vakalatnama. 2. Heard the learned advocate for the appellant-original accused. 3. The appeal is admitted. Learned APP waives service of notice of admission on behalf of the respondent-State. 4. At the request of learned advocate for the appellant-accused the matter is taken up for final hearing today, to which the learned APP and the learned advocate for the original complainant has no objection. 5. The present appeal is preferred by the appellant original accused under Section 374 of the Criminal Procedure Code being aggrieved and dissatisfied with the judgment and order, passed by the learned Special Judge (POCSO) and Additional Sessions Judge, Sabarkanta at Himmatnagar, in Special (POCSO) Case No. 17 of 2015 dated 05.06.2017, whereby, the appellant herein original accused held to be guilty for the offences punishable under Section 354(1)(a) of the Indian Penal Code and Section 7 of the Protection of Children from Sexual Offences Act, 2012, and for the offence punishable under Section 354(1)(a) of the Indian Penal Code, the appellant is ordered to suffer rigorous imprisonment for one year with fine of Rs. 5000/- and in default of payment of fine, to undergo further simple imprisonment for 30 days, and for the offence punishable under Section 7 of the Protection of Children from Sexual Offences Act, 2012, the appellant is ordered to suffer rigorous imprisonment for three years with fine of Rs. 5000/- and in default of payment of fine, to undergo further simple imprisonment for 30 days. Both the sentences were ordered to run concurrently. The trail Court has acquitted the appellant accused for the offence punishable under Section 325 of the Indian Penal Code. It is also ordered to pay the amount of fine of total Rs. 10,000/- to the victim towards compensation. 6. Brief facts of the prosecution are as under: On 08.04.2014, at about 03:00 O'clock in the noon, the complainant-victim went to her agriculture field along with her sister Varsha. When they were returning to home from the field, in the way, the appellant-accused came close to both of them and started telling that he has a work from her (victim) in Vaangha. As the appellant-accused stated so, she got frightened. When they were returning to home from the field, in the way, the appellant-accused came close to both of them and started telling that he has a work from her (victim) in Vaangha. As the appellant-accused stated so, she got frightened. As the appellant-accused started pulling her for taking to Vaangha, she tried to escape to save herself. As the victim-complainant resisted, the appellant-accused kissed her forcefully. When sister of the victim-complainant tried to drag her sister away from the appellant-accused, the appellant accused jerked and made her fallen down. At that time, as sister of the victim gave stick blow to the appellant-accused, the victim-complainant got released from the appellant-accused. Thereafter, as one Jhalamsing Parmar came there, the present appellant ran away from there. Thereafter, both the sisters returned to their home with their uncle Jhalamsing and informed about the entire incident to their parents. Therefore, the complaint was lodged against the present appellant regarding the aforesaid incident. 7. Pursuant to the complaint, investigation was carried out. After investigation, charge- sheet was filed before the Judicial Magistrate First Class, Prantij, District Sabarkantha. As the case was triable by the Special Court, it was transferred to the Special Court, Sabarkantha at Himmatnagar. 8. The trial Court framed charge against the appellant-accused, which was read over to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 9. In order to bring home the charge against the accused, the prosecution has examined as many as 07 witnesses and also produced several documentary evidence. 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, the accused denied the evidence forthcoming on the record and stated that a false case has been registered against him. Thus, after recording above-referred Further Statement and hearing the arguments on behalf of prosecution and the defence, the learned Special Judge convicted the accused as aforesaid by impugned judgment and order. 10. Thus, after recording above-referred Further Statement and hearing the arguments on behalf of prosecution and the defence, the learned Special Judge convicted the accused as aforesaid by impugned judgment and order. 10. Learned advocate for the appellant submits that he is not pressing this appeal on merits in respect of the conviction part, but so far as the sentence imposed by the learned trial Court is concerned, the said order may be appropriately modified in view of the fact that by passage of time, the matter is amicably settled between the appellant and the victim-original complainant and to this effect affidavit is also filed by the victim-original complainant. 11. The victim-original complainant is represented through learned advocate Mr. Y.J. Patel. Learned advocate Mr. Y.J. Patel has submitted the affidavit of the victim-original complainant before this Court. Learned advocate for the complainant states that the victim-complainant is present in the Court and he identifies her. It is further submitted that contents of the affidavit are explained and read over to her. Learned advocate Mr. Patel read the contents of the affidavit and stated that, now, the matter has been amicably I settled between the parties I with the intervention of elder family members and the victim-complainant has no objection if the present appeal is allowed. 12. Learned APP Mr. K.L. Pandya appearing for the respondent-State submits that the impugned judgment and order passed by the learned trial Court is in accordance with law. The learned trial Court has passed the judgment and order of conviction and sentence after properly appreciating the documentary as well as oral evidence on record. The learned trial Court has not committed any error while appreciating the evidence on record, and therefore, the judgment and order passed by the learned trial Court is not required to be disturbed by this Court. However, it is submitted that in view of the affidavit filed by the victim-original complainant, appropriate order that may be deemed proper by the Court, may be passed. 13. Regarding being had to the above submissions, and having gone through the impugned judgment and order, it appears that the present appellant has been convicted for the offence punishable under Section 354(1)(a) of the Indian Penal Code and for the offence punishable under Section 7 of the Protection of Children from Sexual Offences Act, 2012. 13. Regarding being had to the above submissions, and having gone through the impugned judgment and order, it appears that the present appellant has been convicted for the offence punishable under Section 354(1)(a) of the Indian Penal Code and for the offence punishable under Section 7 of the Protection of Children from Sexual Offences Act, 2012. The learned advocate for the appellant has restricted his arguments qua sentence part only, in view of the fact that the matter has been amicably settled between the parties. Affidavit of the victim has also been produced on record. Considering the affidavit of victim-original complainant, it appears that the matter is amicably settled between the victim-complainant and the appellant-accused outside the Court with the intervention of their elder family members. The contents of the affidavit are read over and explained to the victim, who is present before the Court and she admitted the same. The victim-complainant has no objection, if the appeal is allowed and the sentence of the appellant is reduced to the period undergone by him from the charge for which he is convicted and sentenced by the trial Court. Accordingly, in the peculiar facts and circumstances of the case, this Court is of the view that the present appeal deserves to be partly allowed and the sentence imposed upon the appellant is required to be reduced to the period the appellant has already undergone in jail, but at the same time, the Court deems it just to enhance the fine to Rs. 15,000/- from that of Rs. 10,000/- imposed by the trial Court. The said fine amount of Rs. 15,000/- is required to be disbursed in favour of the victim-original complainant. 14. In view of the above, the present appeal is allowed in part. The judgment and order dated 05.06.2017, passed by the Special Judge (POCSO) and Additional Sessions Judge, Sabarkantha at Himmatnagar, in Special (POCSO) Case No. 17 of 2015 is hereby confirmed. However, in the peculiar facts and circumstances of the case, the sentence imposed upon the appellant is hereby reduced to the period the appellant has already undergone in jail, but the fine amount is enhanced to Rs. 15,000/- from that of Rs. 10,000/- imposed by the trial Court. The appellant is at large by virtue of order dated 09.06.2017, passed by the trial Court, which was extended by this Court till today. 15,000/- from that of Rs. 10,000/- imposed by the trial Court. The appellant is at large by virtue of order dated 09.06.2017, passed by the trial Court, which was extended by this Court till today. Accordingly, the appellant-accused is directed to deposit the aforesaid amount of fine within a period of two weeks from today before the trial Court, failing which, he shall have to surrender to custody for undergoing the sentence imposed by the trial Court, else the concerned authority shall take the necessary actions in accordance with law. On depositing the fine amount by the appellant, the trial Court shall disburse the same to the victim on proper verification and following due procedure. Record and Proceedings, if received, be sent back to the trial Court.