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2017 DIGILAW 1737 (GUJ)

Allarakha Osmanbhai Juneja v. State of Gujarat

2017-10-07

A.J.SHASTRI

body2017
JUDGMENT : A.J. SHASTRI, J. 1. The present Appeal is filed by the appellant – accused under Section 374 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’ for short) whereby the challenge is made to the judgment and order of conviction dated 11th February, 2016 passed by the learned 9th Additional Sessions Judge, Rajkot at Dhoraji, in Sessions Case No.32 of 2013. 2. The case of the prosecution in nut-shell is that the original complainant – Iqbalbhai Hajiallarakkha Mandhra has lodged a complaint on 2nd July, 2013 before Dhoraji Police Station by alleging that, he is having two daughters and two sons in the family and the victim is one of the daughters of the complainant, who, at the relevant point of time, was aged about 16 years. The complainant is serving as a Driver in travel company and thereby mitigating was the needs of the family. It is asserted in the complaint that, when on 29th June, 2013, at around 01:30 p.m. when he was on duty, the elder daughter Bilkish telephoned to the complainant and requested him to come to house urgently. As a result of it, at around 08:00 p.m., in the night, the complainant reached to the house wherein it was conveyed by elder daughter Bilkish that mother is having fever and when she and prosecutrix were both sleeping in the room at around 03:00 O’clock in the night and when the wife of the complainant woke up, she could not find the prosecutrix in her bed as a result of which the family members have tried to search out the victim, who was studying in standard 10th and knowing Gujarati language but then upon an inquiry it has been found that in the neighborhood one Allarakha Osamanbhai Junaja i.e. present appellant – accused was also not found at the house as a result of which the complainant had to file complaint on 05.07.2013 before Dhoraji Police Station which was registered as C.R.I–No.64 of 2013 for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. The said complaint was sent for investigation and after completing process of investigation since the adequate material was found against the appellant – accused the Investigating Officer has filed charge sheet before the learned Judicial Magistrate First Class at Dhoraji on 2nd September, 2013 pursuant to which criminal case came to be registered being Criminal Case No.705 of 2013. 3. Since the offence was pertaining to the aforesaid provisions and since the learned Judicial Magistrate First Class was not having competence, after perusal of the paper it was found that case deserves to be committed to the court of Sessions as a result of which in exercise jurisdiction under Section 209 of the Cr.P.C., the case was committed to the Court of Sessions by order dated 08.09.2013. Pursuant to the committal a specific charge of Sections 363, 366 and 376 of the Indian Penal Code, 1860 (‘IPC’, for short) came to be framed at Exh.6 and a plea was recorded at Exh.7 of the appellant – accused wherein he denied the offences being committed. Hence, the case was put up for further process. 4. With a view to prove the case against the appellant – accused, the prosecution has led oral as well as documentary evidence. As many as 15 prosecution witnesses have been examined and about 22 documentary evidences came to be adduced before the Court of trial and after tendering such oral as well as documentary evidences, the closer pursis was submitted at Exh.50. The written arguments were also tendered and with a view to grant further opportunity, statement of the appellant-accused, under Section 313 of the Cr.P.C. came to be recorded in which also he claimed to be tried and has denied the offences being committed. Resultantly, the case was put up for further adjudication. The issue appears to have been framed by the learned trial Judge and after considering entire material on record and after considering specific testimonies of relevant witnesses, an order of conviction came to be passed on 11th February, 2016 by the learned 9th Additional Sessions Judge, Rajkot at Dhoraji in which following order of sentence came to be passed. “In exercise of powers conferred under Section 235(1) of the Code of Criminal Procedures, 1973 the accused of the present case Allarakha Osmanbhai Juneja is held to be guilty of offences under Sections 363, 366 and 376 of the Indian Penal Code. “In exercise of powers conferred under Section 235(1) of the Code of Criminal Procedures, 1973 the accused of the present case Allarakha Osmanbhai Juneja is held to be guilty of offences under Sections 363, 366 and 376 of the Indian Penal Code. The accused is convicted for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. Insofar as section 363 of IPC is concerned, the accused is, therefore, sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo further one year simple imprisonment. Insofar as section 366 of IPC is concerned, the accused is, therefore, sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo further one year simple imprisonment. Insofar as section 376 of IPC is concerned, the accused is, therefore, sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo further one year simple imprisonment. All sentences are ordered to be run concurrently.” 5. It appears from the record that warrant of sentence came to be issued since learned Additional Sessions Judge found appellant – accused as guilty of offences punishable under Sections 363, 366 and 376 of the IPC and it is against this judgment and order of conviction passed by the learned Sessions Judge, the appellant – accused has submitted an appeal before this Court which came to be admitted on 20th June, 2017. After completion of preparation of paper-book, appeal has come up for consideration before this Court in which learned advocate Mr.Bomi H. Shethna has represented the appellant – accused whereas the State was represented by Mr.Hardik Soni, learned Additional Public Prosecutor. 6. Mr.Bomi H. Shethna, learned advocate appearing for the appellant – accused has contended that order of sentence is not just and proper in view of the material on record. It was also pointed out that there are as many as three different versions coming out on record with regard to incident in question, and, therefore, in such a situation when there is an inconsistency in the case of the prosecution, benefit of doubt must be given in favour of the appellant – accused. It was also pointed out that there are as many as three different versions coming out on record with regard to incident in question, and, therefore, in such a situation when there is an inconsistency in the case of the prosecution, benefit of doubt must be given in favour of the appellant – accused. Mr.Shethna, learned advocate has contended that the first version given by the complainant on 02.07.2013, which is at Exh.20 at page 47 of the paper-book compilation, whereas second version is given by prosecutrix herself in the form of statement recorded under Section 164 of the Cr.P.C., which is reflecting at page-57 of the paper-book compilation and the said statement came to be recorded on 23rd July, 2013 and the third version which is coming out is in the form of deposition which took place on 06.02.2014, which is recorded at Exh.23 and therefore in view of these three different versions, which are coming out with regard to offence, it cannot be said that prosecution has established the case beyond reasonable doubt against the present appellant. On the contrary, there are several contradictions in the version of the prosecutrix herself in chief-examination as well as in her cross-examination and that is quite contrast to 164 statement which has been recorded and therefore on the basis of such contradictory testimony it is not safe to convict the appellant – accused by holding him guilty of an offence. Mr.Shethna, learned advocate has further contended that during the passage of time when the prosecutrix and the appellant – accused were moving, they have moved in the public place and there was ample opportunity for the prosecutrix to shout, to seek help or even to run away from the clutches of appellant – accused and, therefore, when such chance was very much though available, it was not availed of which clearly indicates that there was a clear case of consent of prosecutrix and therefore in such a situation as per the say of Mr.Shethna, learned advocate, it is not safe to convict a person or to conclude that prosecution has established the case beyond reasonable doubt. 6.1 Mr.Shethna, learned advocate has further drawn the attention of the medical evidence and contended that ocular evidence is not matching with the medical evidence. 6.1 Mr.Shethna, learned advocate has further drawn the attention of the medical evidence and contended that ocular evidence is not matching with the medical evidence. In fact, physical examination of the prosecutrix has revealed that there are no marks of injury nor marks of any physical force adopted by the appellant – accused upon her. Even as per the radiological opinion, the age of the prosecutrix has appeared to be 17 to 18 years and simply because the medical opinion has indicated that there is a possibility of sexual intercourse, the appellant cannot be held to be guilty of an offence and that too of such a serious nature. In fact, it appears from the entire testimony that both eloped with their own consent and, therefore, no rape is said to have been committed. Mr.Shethna, learned advocate has further contended that initially the medical examination was tried to be undertaken by Dr.Jugnuben Mahmmadali, at Exh.37, but then since prosecutrix has not co-operated, she was referred to Dr.Shitalben Samirbhai Prajapati, at Exh.39, whose testimony is reflecting on page:98. The testimony of Dr.Shitalben Prajapati has indicated that possibility cannot be ruled out of physical act which has been alleged to have been done by the appellant – accused and, therefore, as per the say of Mr.Shethna, it cannot be said that offence of rape is committed by appellant – accused. Mr.Shethna, learned advocate has further contended that even from physical examination of appellant – accused, which was undertaken by Dr.Hardikbhai Gopalbhai Ghodasara, who is examined at Exh.34, whose testimony is reflecting at page:90 of the paper-book compilation, which also further indicates that there was no signs of any injuries by virtue of which it can be said that any act is committed by the appellant – accused upon prosecutrix as alleged, and, therefore, when medical opinion is not supporting the case of the prosecution, there is hardly any justifiable material which indicates that any offence is established against the appellant – accused. Mr.Shethna, learned advocate has indicated that simply because of some semen count have been found on item B-2 from FSL report, no assumption of guilt can be established especially when the specific medical opinion was uncertain about the act which has been alleged to have been committed and, therefore, in this background of fact when beyond reasonable doubt prosecution has not been able to establish, benefit of doubt must be given and extended to the present appellant and for that purpose Mr.Shethna, learned advocate has relied upon the decision of the Apex Court and thereby requested the Court to grant the benefit of doubt. Such decisions are as follow and the same may be dealt with at an appropriate stage. (i) 2006 (10) SCC 92 in case of Sadashiv Ramrao Hadbe vs. State of Maharashtra and another; (ii) AIR 2015 SCW 1689 in case of Satish Kumar Jayanti Lal Dabgar vs. State of Gujarat. 6.2 Mr.Shethna has lastly submitted that on the contrary this is a fit case in which the benefit must be extended because the prosecutrix on her own went with appellant – accused, roamed around openly in the public place with her own volition and there was ample opportunity to run away still has not made any attempt and therefore this being the position, it cannot be said that any offence is committed by the appellant – accused. On the contrary, the accused person, at the relevant point of time, was aged about 21 years and was having love affair with the prosecutrix, who was 16 ½ years of age at a relevant point of time and therefore conviction order which has been passed deserves to be quashed and set aside and ultimately it has been stated that for a period of almost four years the appellant accused is languishing in jail. In such a situation, request is made to grant the benefit of doubt by setting aside the order of conviction. No other submissions have been made. 7. To oppose and meet with the stand taken by the advocate for the appellant, learned Additional Public Prosecutor Mr.Hardik Soni has vehemently contended that on the contrary there is no inconsistency in the case of prosecution. No other submissions have been made. 7. To oppose and meet with the stand taken by the advocate for the appellant, learned Additional Public Prosecutor Mr.Hardik Soni has vehemently contended that on the contrary there is no inconsistency in the case of prosecution. Mr.Soni, learned APP has submitted that if a bare look at the statement recorded under Section 164 of the Cr.P.C. to be looked into in co-relation with the testimony of the prosecutrix and conjointly if the complaint is to be examined, except minor contradictions, there is no material change of any nature in case of the prosecution and, therefore, it cannot be said in any manner that there is any inconsistency in the version of the prosecutrix. Mr.Soni, learned APP has further contended that undisputedly it is emerging from the record that at the relevant point of time, the prosecutrix was minor at the age of 16 ½ years and, therefore, when minor is to be dealt with by the appellant – accused even in the love affair, her consent cannot be said to consent in eye of law. Mr.Soni, learned APP has further contended that in the birth certificate, the date of birth of the prosecutrix indicated as 28th January, 1997 and the birth date which is figuring at page:51 as well as at page:120 of the paper-book compilation both appear to have been recorded much prior to the commission of crime, and therefore it is not the case even of appellant that birth date issue has been manipulated by the prosecution nor this unequivocal evidence with regard to age of prosecutrix the medical case being a mere opinion cannot be allowed to be given any preference because ultimately medical opinion is a mere tentative opinion and therefore as against specific document the tantative opinion looses its significance and therefore Mr.Soni, learned APP has contended that of course there is no case of consent but still however assuming without admitting that it is a case of consent then also consent of minor cannot be said to be consent in eye of law and therefore when appellant accused was dealing with a minor on the contrary has to act more maturely and ought not to have committed offence as alleged. Mr.Soni, learned APP has further contended that there is no major contradiction between the version of prosecutrix either in her deposition or in statement recorded under Section 164 of the Cr.P.C and therefore there is a settled position of law that even conviction can be based upon sole testimony of prosecturix. Whereas here in the present case, the testimony of prosecutrix is substantiated not only by medical evidence but by other independent witnesses, as well. Therefore, in absence of any material contradiction of any nature, no order of conviction can be set at naught. Mr.Soni, learned APP has further contended that even this is not a case where no medical evidence is available. On the contrary, physical condition of the prosecutrix while she was taken to medical examination was very much bad was of a very less weight and on account of pain she was not in a position to cooperate to be examined physically. Page nos.106 and 110 clearly indicate the physical condition of the prosecutrix. The physical examination was undertaken without any undue delay wherein it has been found that hymen of the prosecutrix was ruptured and, therefore, in such a situation, it cannot be said that no offence is committed by the appellant accused. On the contrary, in FSL report, it has been found that on a muddamal article human sperm has been found and, therefore when situation prevailing on record in no certain terms it can be said that appellant accused is innocent. In addition thereto, Mr.Soni, learned APP has further submitted that even accused, in his further statement, has also not given any explanation to the incriminating circumstance which was put before him and in addition thereto from the entire testimony it is revealed that practically birth date and the certificates which are prevailing on record have not remained in contradiction at all nor challenged by the appellant – accused and therefore in such a situation when the record clearly establishes the guilt of appellant accused the order of conviction is justifiably passed, and, therefore, no interference may be made and appeal may be dismissed. 8. In view of aforesaid submission having been made, in rejoinder Mr.Shethna, learned advocate for the appellant accused has then ultimately requested the Court to consider the case of the appellant by reducing the sentence awarded to the appellant. 9. 8. In view of aforesaid submission having been made, in rejoinder Mr.Shethna, learned advocate for the appellant accused has then ultimately requested the Court to consider the case of the appellant by reducing the sentence awarded to the appellant. 9. Having heard learned advocates representing the respective sides and having gone through the material on record and perused the same in co-relation with the reasons, which are assigned by the learned Sessions Judge, since this being an appeal against the order of conviction, the Court has thought it fit to cross-check by independent examination of evidence to ascertain whether any error is committed by the learned Sessions Judge or not while passing an order of conviction, and, therefore, in such exercise of analysing the evidence following facts have been found not possible to be ignored by this Court. 9.1 A perusal of the testimony of Prosecution Witness No.1, who is the father of victim, examined at Exh.19 has narrated almost similar version, which has been stated broadly in FIR. From the testimony of this witness, it is emerging clearly that the birth of the victim took place in the year 1997 precisely on 28.01.1997 and the same was recorded in Dhoraji Nagarpalika in Birth and Death Register as well. Similarly the testimony further reveals that even the birth date has also been recorded in the School Leaving Certificate and the school record and the Nagarpalika’s record with regard to the date of birth is clearly indicating that at the relevant point of time, the prosecutrix– was minor. Even his testimony is indicating that the victim was studying in the school in Standard 10th standard and while recording her date of birth in the Nagar Palika proper procedure has been followed, and, therefore, overall testimony is indicating that the date of birth is clearly indicating that victim was minor at a relevant point of time. To meet with the said testimony, the bare perusal if to be looked to page-51 of paper-book compilation on which the birth certificate recorded in Dhoraji Nagar Palika is available in which the date of birth is 28.01.1997 and the same has been recorded on 29.05.1999 i.e. much prior to commission of crime, and, therefore, there is no earthly reason to disbelieve such date of birth as projected and established by the prosecution. 9.2 In addition thereto, the most material evidence which is to be looked into is the evidence of prosecutrix herself recorded at Exh.23, at page 52 of paper-book compilation. The entire narration of the incident by the prosecutrix is indicating clearly that while everybody was sleeping in house, on 29.06.2013 somebody knocked the door and when she opened the door the appellant accused was standing in front and he dragged the prosecutrix and gagged her face with some cloth which compelled the prosecutrix to go along with the appellant accused. The testimony of this witness has further revealed that a threat was administered by the appellant accused and by administering such threat a specific assertion is visible in the testimony that forcible intercourse has been committed by appellant accused with minor victim and this act has been undertaken even on the next date and the third day as well. Further, since there was a pain, she requested not to commit such an act but still appellant accused did. Thereafter on the third night at around 1:00 to 1:30 O’clock village people and the uncle Nasirbhai came and took the appellant – accused as well as prosecutrix and she was relieved from the clutches of the appellant accused. This entire episode has been narrated by prosecutrix before her mother which has remained consistent even in cross-examination as well. The overall testimony is indicating that forcibly an act is committed by the appellant accused with her which clearly attracts the offences as alleged against the appellant accused. There seem to be no contradiction or any material contradictions of any nature from her earlier statement as well. She has categorically denied that there was love affair between her and the appellant accused and, therefore what is culled out from the testimony is that not only there was no love affair but by gagging her mouth the appellant accused took her away, and committed a forcible act against her will, despite resistance and therefore from her testimony itself it is evident that offence is committed by the appellant accused. There is no corroboration requires if this consistent testimony is to be perused closely. Even the mother of the prosecutrix viz. There is no corroboration requires if this consistent testimony is to be perused closely. Even the mother of the prosecutrix viz. Hasinaben Iqbalbhai Mandhra, who is also examined at Exh.28 as P.W.No.3, to whom first version is known upon reporting from the prosecutrix and thus version of mother is also clearly corroborating the testimony of prosecutrix and, therefore, there seems to be no material contradiction in the case of the prosecution as is clearly visible. 9.3 Now in the context of such consistent evidence which is emerging, if we examine the date of birth as said earlier, the date of birth has remained uncontroverted throughout proceedings. There is neither any challenge to the certificate which has been available on record nor there any resistence made by the appellant accused in defence to contradict, and, therefore, it is practically undisputed that at relevant point of time, the appellant accused was minor. 9.4 The record of the case now in the context of physical condition of prosecutrix is to be perused. The first version of Dr.Jugnuben Mohmmadali is recorded during her examination as P.W.No.8 at Exh.39. Now, first of all when the prosecutrix was taken to this Gynecologist for the purpose of verifying physical condition, since there was a pain it seems that the victim was not cooperating as a result of which she was referred to one another lady Dr.Shitalben Samirbhai Prajapati, who was P.W.No.9 examined at Exh.39 and therefore this material witness, who is the Medical Officer, serving as Gynecologist in Shri Pandit Dindayal Upadhyay General Hospital has examined the prosecutrix on 08.07.2013 who was accompanied by Mahila Police Constable. A categorical history was given by the victim that her date of birth is 28th January, 1997 and entire narration has been consistently remained as it is and this victim was aged about 16 years at the relevant point of time that was even noticed by this Medical Officer who deposed before the Court. The testimony of this witness further reveals that no-doubt there was no marks of injuries found on the exterior part of the body, however hymen was ruptured and since there was pain one figure was hardly possible to be inserted. But this is on account of pain as is reflecting from the testimony of this Medical Officer. The testimony of this witness further reveals that no-doubt there was no marks of injuries found on the exterior part of the body, however hymen was ruptured and since there was pain one figure was hardly possible to be inserted. But this is on account of pain as is reflecting from the testimony of this Medical Officer. A specific opinion is given that possibly of sexual intercourse cannot be ruled out and as per the opinion her age must be around 17 to 20 years but this is a mere opinion with regard to age of the prosecutrix. In cross-examination a mere probability was reflected that it can be possible that there may not be an intercourse but this is further to be looked into from the version that she was at the relevant point of time having pain and thereby was not in position to completely cooperate. Therefore, what has been found from this, is that possibility of sexual intercourse cannot be ruled out. 9.5 Yet another documentary evidence deserves to be looked into is a record of medical examination of sexual assault and the department of Obstetrics and Gynecologist of P.D.U Medical College Hospital, Rajkot has indicated that hymen was ruptured but old and, therefore, if this to be looked into in co-relation with another document at page-111 of paper-book compilation it transpires that there is possibility of intercourse cannot be ruled out and this is so if to be looked in co-relation with the testimony of prosecutrix herself. Of course, the radiological opinion is roughly assessing the age between 17 to 20 years but this is merely an opinion which cannot be put to preference as against specific documentary evidence of a government record. Therefore, this entire material on record is indicating one thing very clear that sexual assault has been made by the appellant accused on her and she being the minor at the relevant point of time which fact also remained uncontroverted by cogent material. 9.6 The further examination of paper-book which is indicating that on page:150 there is a result of FSL analysis in which also at Item Nos.1 and 2 human sperm has been found which clearly indicates that some act has been done by this very appellant accused with the minor victim. 9.6 The further examination of paper-book which is indicating that on page:150 there is a result of FSL analysis in which also at Item Nos.1 and 2 human sperm has been found which clearly indicates that some act has been done by this very appellant accused with the minor victim. 9.7 The case of the prosecution is strengthened further by the testimony of Investigating Officer who was examined at Exh.43 as prosecution witness and the testimony of this Investigating Officer is revealing that sexual intercourse has been committed by the appellant accused with the victim whose birth date has been found during the course of investigation as 28.01.1997. In cross-examination, this Investigating Officer has also further revealed that nowhere love affair has emerged during the course of investigation and neither from the testimony of victim nor from the further statement of accused and, therefore, the testimony is revealing that there is a clear support to the case of the prosecution. 9.8 Now in the background of aforesaid circumstance, which is prevailing on record, if the reasons which are assigned by the learned Sessions Judge to be looked into, it appears that there is no error committed by the learned Sessions Judge in holding the appellant accused as guilty of offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. The detailed narration of the evidence has been evaluated and assessed by the learned Sessions Judge and only thereafter a specific conclusion has been derived which reasons are not possible to be branded as perverse in any case. The learned Sessions Judge while coming to the conclusion has also considered the decisions, which have been cited before him, and, therefore, entire order if to be looked into, the same based on proper exercise of jurisdiction and can’t be said that any error is committed which has resulted into manifest injustice to the appellant and, therefore the order of conviction appears to be justifiably passed by the learned Sessions Judge. 9.9 While considering the case on hand, the Court also thinks it proper to consider the precarious position of the prosecutirx and the family members as well and simply because accused has come forward before this Court, the Court cannot overlook the plight of victim as well. 9.9 While considering the case on hand, the Court also thinks it proper to consider the precarious position of the prosecutirx and the family members as well and simply because accused has come forward before this Court, the Court cannot overlook the plight of victim as well. Since the offence has been committed by the appellant is practically an offence not only against the prosecutrix but against the society as well, and, therefore, some observations made by the Apex Court has to be taken in aid made in the case of Mofil Khan and another vs. State of Jharkhand reported in (2015) 1 SCC 67 . The relevant observations contained in the said judgment, more particularly in paragraphs:60, 61 and 62 since are relevant reproduced hereinafter. “60. In the context of these turbulent social times, we cannot remain oblivious to the substantial suffering of the victims. It stands as a fact that criminal justice/reform and civil rights movement in India has historically only paid considerable attention to the rights of the accused and neglected to address to the same extent the impact of crime on the victims. It is not only the victims of crime only that require soothing balm, but also the incidental victims like the family, the co-sufferers and to a relatively large extend the society too. The judiciary has a paramount duty to safeguard the rights of the victims as diligently as those of the perpetrators. 61. In Mahesh v. State of M.P., this Court has deprecated the lenient approach in imposition of the appropriate punishment and observed that it would be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with clear evidence and diabolic acts. This Court held that to award the lesser punishment would be to render the justice system of this country suspect due to which the common man would lose faith in courts. This Court approved the harshest punishment in such cases as here adopting the approach that the accused understands and the society appreciates the language of deterrence more than the reformative jargon. 62. In Sevaka Peruman v. State of T.N., this Court stated that undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law. 62. In Sevaka Peruman v. State of T.N., this Court stated that undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law. Society could not long endure under such serious threats and therefore, it is 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.” 9.10 Now in the context of the aforesaid situation and available material on record and upon overall analysis, when the guilt is established against the appellant accused, the judgments cited and pressed into service by learned advocate for the appellant if to be looked into, the same appear to be not of that much in assistance. The proposition laid down by Hon’ble the Apex Court is not in dispute at all nor the Court is disbelieving it in any manner but the background of facts on hand is something different from that which is prevailing in the decisions which have been cited. The first decision which has been relied upon is in the case of Sadashiv Ramrao Hadbe vs. State of Maharashtra reported in 2006 (0) GLHEL- SC – 38961. If the facts to be seen of the said case, the background is something different from what is prevailing on present case on hand. In that case, the doctor was not in position to opine anything with regard to sexual intercourse allegedly had taken place and further pathological report was also not supporting the case, and, therefore, in that particular case scientific evidence was not supporting the case of the prosecution and, therefore, in that context observations have been made by the Apex Court in paragraph:9 that no doubt the accused could be convicted on sole testimony of prosecutrix, if it is capable of inspiring confidence. Now, here in the present not only the testimony of prosecution witness is establishing but is also substantiating the corroboration by other witnesses and more particularly the medical evidence is also clearly supporting the case of the prosecution and, therefore there is no circumstance of any nature available in case on hand to disbelieve consistent version of prosecutrix and, therefore, in the background of present case, the observations made by Hon’ble Apex Court in that case cannot be straightway applied over here to set at naught the justifiable conviction order which is passed, and, therefore with respect, the said decision is of no avail to the case of the appellant. Yet another decision which has been tried to be pressed into service is in the case of Satish Kumar Jayanti Lal Dabgar vs. State of Gujarat reported in 2015 AIR SCW 1689 wherein Hon’ble Apex Court, while dealing with an offence punishable under Section 376 of the Indian Penal Code, has dealt with an issue about reduction of sentence and Apex Court, in the said case, was confronted with a situation that concerned High Court has already reduced the sentence from seven years to 4 ½ years and in that context, the Apex Court was dealing with that issue with regard to rejection of sentence and furthermore in that case the consent was emerged very much of the prosecutrix which necessitated the learned Judge of the High Court to reduce the sentence wheres in the present case on hand, there is not only no consent, but a specific refusal on the part of the prosecutrix and a request not to commit such act, and, hence, it cannot be said, in any manner, that here in the present case there was consent. 9.11 Now so far as alternate submission made by learned counsel for appellant, had there been a clear case of consent visible from the record and had there been age of the prosecutrix would have been on a border line possibly the appellant was justified in making request for reduction of sentence, but here from the facts of the present case it clearly emerges that victim was very much resisting the act committed by the appellant accused throughout and the victim had been taken away by gagging her mouth. In addition thereto, the date of birth remains uncontroverted which clearly suggests that she was minor at the relevant point of time and in addition thereto her testimony which has remained consistent throughout which has been substantially corroborated by not only other witnesses of the prosecution but medical evidence as well and, therefore, when such is the case prevailing on record, there is hardly any justifiable reason to accept the request for reduction of sentence. As held by the Apex Court in the recent case that case of rape is not only offence against the prosecutrix herself but it is an offence bearing effect on society as well and, therefore, when there is societal demand and need of deterrence is also to be looked into by the Court while taking decision, the circumstances are not permitting the Court to take any lenient view in the present case on hand, and, therefore alternative request for reduction of sentence is not possible to be ignored by the Court. Accordingly, the Court finds it difficult to accept the contention raised by the learned advocate for the appellant accused and the appeal found to be meritless the same requires to be dismissed. 10. For the above reasons, the present appeal is dismissed. The judgment and order of conviction and sentence, dated 11.2.2016, passed in Sessions Case No.32 of 2013, by the learned 9th Additional Sessions Judge, Rajkot at Dhoraji, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. Appeal Dismissed.