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2024 DIGILAW 2107 (GUJ)

STATE OF GUJARAT v. SHERUBILAL MUBARAKBHAI

2024-12-02

ILESH J.VORA, S.V.PINTO

body2024
JUDGMENT : ILESH J. VORA, J. 1. This enhancement appeal is being filed by the State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973 against the order of sentence dated 06.02.2008 passed by the learned Additional Sessions Judge, Fast Track Court, Bhavnagar, Camp at Mahua in Sessions Case No. 22 of 1996, wherein, the respondent-original accused came to be tried for offences punishable under Sections 452, 376 and 506(2) of the Indian Penal Code, 1860 (old) (‘IPC’ for short). The trial Court, after appreciation of the evidence, convicted the respondent under Sections 452 and 376 of the IPC and he was sentenced as under: Sections of IPC Punishment Fine In default 452 RI for three years Rs. 1,000/- SI for one month 376 RI for three years Rs. 1,000/- SI for one month The sentences were to run concurrently. 2. The facts and circumstances, giving rise to this appeal are that, the respondent accused Sherubilal Mubarakbhai was tried by the Sessions Court for the offence of rape. The victim, aged about 20 years, was at relevant time, deaf, mute and mentally unstable. On 29.05.1995, she was alone at her home, as her mother being housemaid had gone to nearby area to do household work. The appellant accused taking advantage of the situation, came at the house of the victim and after entering into the house, he closed the door and committed a rape upon the victim against her will and wish. By way of gesture, the mother was informed by the victim about the act done by the appellant accused, who is residing nearby the house. The widow mother was under stress and after 5 to 6 days of the incident, she came into contact with social worker/PW-4 Induben Ladva, to whom, she had narrated the facts of the incident. PW-4, gave courage to the mother to file a complaint. The mother Shardaben lodged an FIR on 03.06.1995. The victim after registration of the FIR, sent to the hospital for medical examination. The respondent accused was arrested and brought before the doctor for medical examination. The statement of the girl victim was recorded, as the mother was having expertise understanding the gesture and signs of her daughter. In the test identification parade, held before the Executive Magistrate, the victim identified the accused. The respondent accused was arrested and brought before the doctor for medical examination. The statement of the girl victim was recorded, as the mother was having expertise understanding the gesture and signs of her daughter. In the test identification parade, held before the Executive Magistrate, the victim identified the accused. At the end of the investigation, the chargesheet came to be filed against the appellant-accused. 3. On the basis of material on record, the charge was framed against the respondent at Exh.4, to which he pleaded not guilty and therefore, he came to be tried by the trial Court, accordingly. 4. In order to prove the case against the respondent, prosecution has examined 10 witnesses and exhibited 27 documents to prove its case as per the following table: Oral Evidence PW-1 - Exh.13 Shantibhai Chimanbhai, panch witness PW-2 - Exh.14 Laljibhai Ghughabhai, panch witness PW-3 - Exh.30 Kirtikumar Girdharbhai Vyas, Executive Magistrate PW-4 - Exh.34 Induben Becharbhai Ladwa PW-5 - Exh.36 Dr. Maltiben Chhaganbhai Makwana, medical officer PW-6 - Exh.41 Himmatlal Gawabhai Mori, police officer PW-7 - Exh.46 Gitaben Jivrajbhai, victim PW-8 - Exh.48 Shamjibhai Premjibhai Tank PW-9 - Exh.49 Dr. Maltiben Chhaganbhai Makwana, medical officer PW-6 - Exh.41 Himmatlal Gawabhai Mori, police officer PW-7 - Exh.46 Gitaben Jivrajbhai, victim PW-8 - Exh.48 Shamjibhai Premjibhai Tank PW-9 - Exh.49 Dr. Bharatbhai Navinchandra Panchal, medical officer PW-10 - Exh.54 Bhupatsinh Gawabhai Mori, investigation officer Documentary Evidence Exh.43 Memo by Police Station officer, Mahua to Police Sub-inspector, Mahua Exh.42 Complaint Exh.44 Wireless message Exh.15 Panchanama of physical examination of victim Exh.16 Panchanama of place of incident Exh.17 Memo by Police Sub-Inspector, Mahua to Medical officer, Mahua Exh.18 Medical certificate of victim Exh.19 Report by medical officer, Mahua to FSL, Junagadh Exh.20 Panchanama of collection of samples of victim Exh.21 Panchanama of identification of home of accused by victim using gestures Exh.22 Arrest Panchanama Exh.23 Memo by Police Sub-inspector, Mahua to Executive Magistrate Exh.31 Test Identification Parade of accused Exh.24 Memo by Police Sub-Inspector, Mahua to Medical officer, Mahua Exh.25 Medical certificate of accused issued by Mahua Medical Unit Exh.26 Report by medical officer, Mahua to FSL, Junagadh Exh.27 Panchanama of collection of samples of accused Exh.28 Memo by Police Sub-Inspector, Mahua to FSL, Junagadh Exh.29 Forwarding note of articles Exh.55 Receipt of receiving articles by FSL, Junagadh Exh.56 Forwarding letter by FSL, Junagadh Exh.57 FSL Biological Report Exh.58 FSL Serological Report Exh.39 Medical certificate of victim Exh.38 X-ray taken to assess age of victim Exh.50 Memo by Court Superintendent to Medical Superintendent of Sir T. Hospital Exh.51 Medical certificate of victim issued by Psychiatrist, Sir T. Hospital 5. The accused upon being questioned under Section 313 of the Cr.P.C. with regard to incriminating circumstances made against him in the evidence rendered by the prosecution and he denied it and not lead any evidence in defence. 6. The trial Court proceeded to convict and sentenced the respondent as stated in the earlier part of this judgment. 7. Being aggrieved and dissatisfied with the quantum of sentence awarded by the learned trial Court, the State has preferred this appeal for enhancement of sentence. The trial Court while convicting the respondent accused, directed him to suffer 3 years rigorous imprisonment and fine amount. 8. Mr. L.B. Dabhi, learned Additional Public Prosecutor assailing the judgment and order of conviction, has submitted that, the order of sentence passed by the learned trail Court is unduly lenient and grossly inadequate. The trial Court while convicting the respondent accused, directed him to suffer 3 years rigorous imprisonment and fine amount. 8. Mr. L.B. Dabhi, learned Additional Public Prosecutor assailing the judgment and order of conviction, has submitted that, the order of sentence passed by the learned trail Court is unduly lenient and grossly inadequate. The learned trial Court ought to have imposed maximum sentence for the offences with which the respondent accused was charged. The minimum punishment for the act of rape prescribed was 7 years, which may be for life or for a term which may extend to 10 years. However, for adequate and special reasons to be recorded in the judgment, the trial Court, may impose sentence of imprisonment for a term of less than 7 years. In the facts of the present case, while imposing a sentence less than minimum, the learned trial Court did not assign reasons for recording the sentence and considering the facts of the present case, there is no any adequate or special reasons to impose less than minimum sentence. 9. Mr. L.B. Dabhi, learned Additional Public Prosecutor would further argued that, the victim was helpless as having a physical disability suffering from mental illness and therefore, it is duty of the court to award proper sentence, more particularly, when the crime committed is against the society as a whole and imposing a meager sentence, would be more harm to the system and affect the public confidence. In such circumstances, it has been urged that, by allowing this appeal, this is a fit case to impose a maximum punishment whatever prescribed in the Section 375 of the Indian Penal Code. 10. On the other hand, Mr. Bhisma Raval, learned advocate appearing for the respondent accused, opposing the contentions has contended that, the learned trial Court in its judgment observed that the victim having mentally unstable was kept in a mental hospital and therefore, the court could not examine her. The mother of the victim after registration of the offence, has passed away. The PW-4 and PW-8, having no knowledge about the occurrence of the incident. The statement of the victim had not been recorded by the police in the presence of special educator or with the assistance of an interpreter. The mother-complainant was not having such expertise to understand the special language as well as sign of the person who having a disability. The statement of the victim had not been recorded by the police in the presence of special educator or with the assistance of an interpreter. The mother-complainant was not having such expertise to understand the special language as well as sign of the person who having a disability. The aforesaid lacuna having been observed by the trial Court. Thus, therefore, where there is no sufficient evidence to establish the charge beyond reasonable doubt, the learned trail Court, entertaining grave suspicion that the respondent accused committed a rape upon victim, however, it is settled law that suspicion however strong or grave, it cannot take the place of proof beyond reasonable doubt. Thus, it has been submitted that the evidence adduced by the prosecution are not sufficient to hold the respondent guilty of the charge then, the question does not arise to enhance the sentence on the ground of its inadequacy. 11. Heard at length the learned counsel appearing for the respective parties and perused the case records and findings recorded by the trial Court on the aspect of sentence. 12. It is not in dispute that, the trial Court while convicting respondent accused imposed a sentence of imprisonment for a term of less than 7 years. It is provided that, the court may for adequate and special reasons, to be mentioned in the judgment, imposed the sentence less than minimum. 13. In the instant case, the victim aged about 20 years, was deaf, mute and mentally unstable person and she was kept in a mental hospital and her evidence could not be recorded, because of her mental disability. Section 119 of the Evidence Act provides that, the victim of sexual offences or any other offence who are having a problem in communicating verbally, can be a witness and the court can record their statement during the trial. Thus, the witness who is unable to speak, may give his/her evidence in any other manner in which, he can make it intelligible, as by writing or by signs. In the present case, victim has not been examined. The mother who could understand the gesture and sign by the victim, died after the registration of the FIR. The other witnesses like PW-4 and 8, having no knowledge of the incident nor they understand the gesture and sign of the victim. In the present case, victim has not been examined. The mother who could understand the gesture and sign by the victim, died after the registration of the FIR. The other witnesses like PW-4 and 8, having no knowledge of the incident nor they understand the gesture and sign of the victim. There is no sufficient medical evidence to infer the complicity of the accused in the alleged forceful intercourse. The above lacuna of the prosecution case, having been taken note by the trial Court. In such circumstances, we are of the considered opinion that the learned trial Court recorded the moral conviction. Though the incident was serious and grave affecting the society as large, but it is the duty of the Court to proceed on the basis of legal evidence. Thus, in our opinion, in the absence of direct or circumstantial evidence, the conviction could not have been recorded by the trial Court.. This enhancement appeal filed under Section 377 of the Cr.P.C. sub-section (3) of Section 377, provides that the appellant Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing the cause, the accused may plead for his acquittal or for the reduction of the sentence. In the present case the accused has already undergone his 3 years jail term. He has not filed any appeal challenging his conviction but he pleaded for his acquittal or reduction in sentence in the appeal filed by the State. We find substance in the submission made by learned counsel Mr. Raval, appearing for and on behalf of the accused. Thus, therefore, though sufficient reasons being not assigned by the trial Court, while imposing less than minimum sentence, but considering the issue for acquittal, as raised herein, we deem it fit not to interfere with the sentence recorded by the trial Court. 14. Accordingly, present enhancement appeal stands dismissed and is hereby dismissed. R&P, if any, be sent back forthwith to the trial Court.