Bhagirath @ Bhato Pravinsin Balvantsinh Vaghela vs State of Gujarat

Z.K. Saiyed, J.—The present appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 11.12.2008 passed by the learned Addl. Sessions Judge, Fast Track Court No. 6, Ahmedabad (Rural) at Mirzapur, Ahmedabad in Sessions Case No. 97/2007, whereby, the learned Judge has convicted the appellant u/s 363 and sentenced to undergo imprisonment of three years R/I and to pay a fine of Rs. 300/, in default, to undergo further S/I for two months. The appellant is also convicted u/s 366 of IPC and sentenced to undergo R/I for a period of four years and to pay a fine of Rs. 400/- in default, to undergo further S/I for four months. The appellant is also convicted u/s 376 of IPC and sentenced to undergo R/I for 7 years and to pay a fine of Rs. 1000/-, in defualt, to undergo S/I for five months, which is impugned in this appeal. The learned Judge has also directed that all the sentences to run concurrently.

The brief facts of the prosecution case is as under:

The case of the prosecution, in nut-shell is that on 18.3.2007 between 2.30am to 5.30am in the night, the appellant has taken away minor daughter Srusti from the lawful custody of the complainant from his residence as also Indica Car bearing registration No. GJ-9-H-1922 with an intention to commit rape with her at Morbi and Dharampur, and the appellant has committed rape on minor daughter Shrushti at Morbi and dharampur.

Therefore a complaint came to be filed by the complainant before the Ghatlodia Police Station. The panchnama of the clothes put on by the victim on 18.3.2007 was prepared in the presence of panch witness and statements of the witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned Judicial Magistrate First Class, Ahmedabad. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was given number as Sessions Case No. 97/2007.

Thereafter, the charge was framed at Ex. 3 against the appellant. The appellant - accused has pleaded not guilty and claimed to be tried.

In order to bring the home the charge levelled against the appellant- accused, the prosecution has examined the following witnesses

PW-1 Dr. Upendra Gopalbhai Patel, Ex. 8

PW-2 Fatesinh Umedsinh Parmar Ex. 17

PW-3 Chetan Kaliyabhai Ahir Ex. 19

PW-4 Arvindsinh Dipsinh Rathod Ex. 21

PW-5 Shrikrishna Raghuvirdas Menon Ex. 25

PW-6 Hiteshbhai Rameshbhai Ex. 27

PW-7 Dr. Babubhai Somabhai Parmar Ex. 30

PW-8 Srusti A Rathod Ex. 35

PW-9 Sahebkhan Jivankhan PathanEx. 36

PW-10Devisinh Ramjibhai Makwana PSI Ex. 40

PW-11 Jayendrasinh Kanaksinh Zala, PI, Ex. 41

During the course of the trial, the prosecution has also produced documentary evidence before the trial Court, which are as under.

Complaint Ex. 22

Birth certificate of victim Ex. 23

RC Book of Indica car Ex. 24

Panchnama of scene of offence Ex. 26

Panchnama of person of accused Ex. 19

Medical certificate of victim Ex. 10

Medical certificate of accused Ex. 9

Medical report about age of victim Ex. 31

Copy of register of the Guest House Ex. 29

Medical case papers of accused Ex. 11

Yadi Ex. 12

Letter Ex. 13

Case paper of victim Ex. 14

Yadi for medical Ex. 15

Letter ex. 16

Case papers Ex. 31

History papers Ex. 32

Yadi Ex. 37

Arrest memo Ex. 38

Yadi to add Section 376 of IPC Ex. 42

Copy of register of Guest House Ex. 28

Copy of licence Ex. 29

Yadi to FSL ex. 43

Receipt of FSL Ex. 44

Letter of FSL Ex. 45

Report of FSL Ex. 46

Report of Serological Ex. 47

Thereafter, after examining the witnesses, further statement of the appellant-accused u/s 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 11.12.2008 held the appellant - accused guilty to the charge levelled against him u/s 363, 366 and 376 of IPC and convicted and sentenced the appellant accused, as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Ahmedabad, the present appellant has preferred this appeal.

Heard Mr. RJ Goswami learned advocate for the appellant and Mr. HH Parikh learned APP for the respondent-State.

Mr. Goswami learned advocate for the appellant has contended that it is established beyond reasonable doubt that there was a love between the appellant and prosecutrix. He has also shown the birth certificate of the prosecutrix. No doubt, the prosecutrix is blow 16 years, but looking to the provisions of Section 363, the prosecution has established its case beyond reasonable doubt and, therefore, the learned Judge has imposed the punishment upon the present appellant, as stated above. Mr. Goswami has also contended that from the medical papers, it appears that there was a consent of the prosecutrix. However, looking to the provisions of Section 376 of IPC, the present prosecutrix was below 16 years, therefore, Mr. Goswami has submitted that he is not arguing the matter on merits, but he is arguing the matter only on the quantum of punishment. Mr. Goswami has, therefore, contended that looking to the age of the present appellant, the conviction u/s 376 of IPC for seven years is very harsh and requires to be reduced.

As against this, learned APP Mr. HH Parikh appearing for the State has read the oral as well as documentary evidence produced on record and contended that looking to the age of the prosecutrix, who was below 13 years at the time of incident, she does not know anything regarding her future and for the purpose to protect the society, the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge requires to be confirmed.

I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and other material witnesses and also perused the charge framed against the appellant. From the cross-examination of the prosecutrix, it is prima-facie established that there was a love affair between the prosecutrix and the present appellant. From the conduct of the prosecutrix, it is clear that she has moved with the present appellant at different places and also visited the hotel, no doubt, physical relation has been established through medical papers. The learned Addl. Sessions Judge has convicted the appellant after considering the oral evidence of victim as well as medical expert. I have gone through the reasons given by the learned Addl. Sessions Judge. However, I am of the opinion that when the learned advocate appearing for the appellant is not arguing the matter on merits but agruing the matter only for the purpose of quantum of punishment, then, in my opinion, the conviction u/s 376 of IPC imposed by the learned Addl. Sessions Judge upon the appellant to undergo 7 years R/I is required to be reduced to 5 years.

In the result, this appeal is partly allowed. The impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Fast Track Court No. 6, Ahmedabad (Rural) at Mirzapur, Ahmedabad in Sessions Case No. 97/2007 is hereby modified to the extent that the conviction u/s 376 of IPC imposed upon the appellant to undergo R/I for 7 years is hereby reduced to 5 years R/I. Rest of the impugned judgment and order shall remain unaltered. R & P to be sent back to the trial court forthwith.