Dinesh @ Dinu vs State of Gujarat

J.C. Upadhyaya, J.—Challenge in this appeal is to judgment and order dated 21.9.2007 rendered by learned Additional Sessions Judge, Fast Track Court, Dhrangadhra, in Sessions Case No. 21 of 2007, whereby the Appellant herein, who was original accused in the said Sessions Case, came to be convicted for the offences punishable under Sections 376, 366, 363, and 506 (2) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 5,000/- and in default of payment of fine rigorous imprisonment for one year for offence punishable u/s 376 of the Indian Penal Code, rigorous imprisonment for five years and fine of Rs. 3,000/- and in default of payment of fine rigorous imprisonment for six months for offence punishable u/s 366 of the Indian Penal Code and rigorous imprisonment for five years and to pay fine of Rs. 3,000/- and in default of payment of fine rigorous imprisonment for six months for offence punishable u/s 363 of the Indian Penal Code and rigorous imprisonment for one year and fine of Rs. 1,000/- and in default of payment of fine rigorous imprisonment for one month for the offence punishable u/s 506 (2) of the Indian Penal Code. All the sentences of imprisonment were ordered to run concurrently and the accused was given benefit of set off.

The prosecution case, as unfolded during the trial, is that the incident occurred on 26.10.2006 at Village-Dhanad, Taluka-Halvad, District-Surendranagar. At about 8 p.m. on said date, the prosecutrix who happens to be sister of the first informant - Avsarbhai Gordhanbhai, who was aged about 16 years, came to be kidnapped by the accused for the purpose of rape and she was taken to different places and she was threatened to dire consequences and was raped. First informant, Avsarbhai, brother of the prosecutrix, informed the incident to Halvad Police Station and his FIR was registered. During the course of investigation, statements of material witnesses were recorded. Necessary panchnamas were prepared in presence of panchas. On 18.12.2006, both the accused and the prosecutrix could be traced out. The prosecutrix was sent to hospital for her medical check up. The accused was arrested and he was also forwarded to hospital for medical check up. After collecting required material for the purpose of lodgment of charge sheet, charge sheet came to be filed in the Court of learned Judicial Magistrate (First Class), Halvad. Since the offence punishable u/s 376 of the Indian Penal Code is exclusively triable by the Court of Sessions, learned Magistrate committed the case to Court of learned Additional Sessions Judge, Dhrangadhra. The trial Court framed charge against the accused at Exh.4, to which he did not plead guilty and claimed to be tried. Thereupon the prosecution examined 15 witnesses and produced 24 documents detailed in para 3 in the impugned judgment. After the prosecution concluded its oral evidence, the trial Court recorded further statement of the accused u/s 313 of the Code of Criminal Procedure and in his further statement accused denied all the incriminating circumstances emerging from the evidence adduced by the prosecution and put to him by the trial Court and stated that he was falsely implicated in this case. After evaluating and appreciating the oral and documentary evidence on record and after considering the submissions made on behalf of both the sides, the trial Court recorded conviction of the accused for the offences punishable u/s 376, 366, 363 and 506 (2) of the Indian Penal Code and awarded sentence as herein above referred to in this judgment. This has given rise to present appeal.

At the outset, Ms. Sadhna Sagar, learned advocate for the Appellant accused submitted that considering oral and documentary evidence on record and more particularly considering the evidence of the prosecutrix, PW-6 examined at Exh.25, the conviction of the Appellant recorded by the trial Court is not assailed. However, it is submitted that from the evidence on record it clearly transpires that at the time when the incident took place the Appellant-accused was aged about 19 years. Testimony of the prosecutrix reveals that the accused was not unknown to her as the accused was serving at the relevant time in agricultural field of father of the prosecutrix and the accused was residing in the same house itself where the prosecutrix was residing. Ms. Sagar submitted that the prosecutrix herself admitted in her evidence that they both were in love. However, it is submitted that at the relevant time prosecutrix was minor, aged about 16 years and 11 months, and therefore, technically speaking the offences charged against the accused can be said to have been constituted. It is further submitted that at the time of fixing quantum of sentence the Court can take into consideration above aspect of the matter. In the instant case, the trial Court while fixing quantum of sentence did not consider above vital aspects of the matter and awarded the sentence. Ms. Sagar, learned advocate for the Appellant accused further submitted that, as per the jail remark sheet, by now, the Appellant accused has undergone about four years and eight months in jail and his conduct is reported to be good in jail. Ms. Sagar, therefore, submitted that considering the proviso attached to Section 376 of the Indian Penal Code, Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years, which is minimum sentence provided for the offence. Ms. Sagar further submitted that the Appellant accused hails from poor strata of the society and he is unable to pay total amount of fine of Rs. 12,000/- imposed upon him by the trial Court. Ultimately, Ms. Sagar, learned advocate for the Appellant accused submitted that the period undergone by the accused in jail may be considered to be sufficient sentence and the fine amount may be appropriately reduced.

Mr. Kartik Pandya, learned APP for the State vehemently opposed this appeal and submitted that considering the facts and circumstances of the case and overall evidence on record, there is no reason to interfere with the order of sentence passed by the trial Court and the appeal may be dismissed.

At the outset, it is stated that since the appeal is not pressed on the count of conviction recorded by the trial Court for the offences established against the Appellant accused, we do not find it necessary to re-examine and reassess entire oral and documentary evidence adduced by the prosecution before the trial Court. Suffice it to say that the trial Court after appreciating and examining the oral and documentary evidence came to the conclusion that all the offences charged against the Appellant accused have been proved by prosecution beyond reasonable doubt and said finding has not been assailed on behalf of the Appellant accused. However, the instant appeal is pressed only qua the quantum of sentence. As seen above, maximum sentence of imprisonment awarded by the trial Court for the offences proved against the accused is rigorous imprisonment for a term of ten years. Considering overall evidence on record and more particularly deposition of prosecutrix, PW-6, Exh.25, and the evidence regarding her age, there is no dispute that at the time of incident she was minor, aged about 16 years and 11 months. It is true that both the accused and the prosecutrix moved together to different places for the period of about two months. However, the trial Court by undertaking detailed analysis and appreciation of evidence observed in the impugned judgment that there was no consent of the prosecutrix. However, at the time of fixing the quantum of sentence, it appears that the trial Court without taking into consideration overall evidence of the prosecutrix so also the age of the accused, fixed the quantum of sentence.

It is true that the offence of rape is a serious and heinous offence and a person convicted of such an offence cannot be treated lightly or with any kind of compassion. It also cannot be gainsaid that supposed consent of a girl, below the age of sixteen, would be immaterial and irrelevant as far as conviction is concerned. It is a different question whether consent of the victim could always be treated as a mitigating circumstance to justify lesser punishment. It was submitted by learned Counsel, Ms. Sagar, that various circumstances were considered and accepted as special and adequate by the Supreme Court for reducing the sentence. In Ram Kumar v. State of Haryana [(2006) 4 SCC 347], the victim having been married and living with her husband was cited as the reason for reducing sentence to imprisonment for three years. In Raj Kumar @ Raju Yadav @ Raj Kumar Yadav v. State of Bihar [(2006) 9 SCC 589 ], the convict had undergone approximately three and half years of incarceration and in view of the doctor''s deposition that there was no confirmatory evidence of rape on the victim, the sentence was reduced to the period already undergone. In Sukhwinder Singh v. State of Punjab, (2000) 9 SCC 204 , the prosecutrix was a consenting party and a compromise petition was duly filed, but the High Court refused to award less than the minimum sentence. The Supreme Court held that the High Court ought to have reduced the sentence to the period already undergone by the Appellant. It was, however, fairly conceded that there cannot be a straight jacket formula and the sentence or reduction thereof should depend upon special facts and circumstances of each case. Therefore, it is not a matter of liberal or strict attitude or a specific and certain sentencing policy but a matter of doing justice by imposing appropriate punishment in a particular case having regard to the special facts and circumstances. In certain set of circumstances, neither the theory of deterrent punishment, nor the system of preventive detention, nor reformatory theories of sentencing come into full play but only a convicted person, on the threshold of his youthful and useful life, may lose crucial years of his working life with a stigma and in company of some hardened criminals. The real and effective punishment, without imprisonment, suffered by old and aged parents of the convict, as it appears to have happened in the facts of the present case, just remain out of consideration of the court.

Seen in the above context, we are of the considered opinion that in the facts and circumstances of the case and more particularly considering the testimony of the prosecutrix so also considering the age of the Appellant accused at the time of the incident and considering his poor financial condition, the sentence awarded by the trial Court to the Appellant accused deserves to be appropriately modified.

For the foregoing reasons, the appeal succeeds in part and it is partly allowed on the count of sentence. The conviction of the Appellant accused recorded by learned Additional Sessions Judge, Dhrangadhra, on 21.9.2007 in Sessions Case No. 21 of 2007 for the offences punishable u/s 376, 366, 363 and 506 (2) of the Indian Penal Code is confirmed and upheld. However, sentence awarded by the trial Court to the Appellant accused to undergo rigorous imprisonment for ten years and fine of Rs. 5,000/- and in default of payment of fine rigorous imprisonment for one year for offence punishable u/s 376 of the Indian Penal Code and to undergo rigorous imprisonment for five years and fine of Rs. 3,000/- and in default of payment of fine rigorous imprisonment for six months for offence punishable u/s 366 of the Indian Penal Code and rigorous imprisonment for five years and to pay fine of Rs. 3,000/- and in default of payment of fine rigorous imprisonment for six months for offence punishable u/s 363 of the Indian Penal Code and rigorous imprisonment for one year and fine of Rs. 1,000/- and in default of payment of fine rigorous imprisonment for one month for the offence punishable u/s 506 (2) of the Indian Penal Code is modified and reduced to the period already undergone in jail in this case by the Appellant accused and fine of Rs. 500/- and in default of payment of fine simple imprisonment for three months for the offence punishable u/s 376 of the Indian Penal Code, rigorous imprisonment for three years and fine of Rs. 250/- and in default of payment of fine simple imprisonment for two months for offence punishable u/s 366 of the Indian Penal Code and rigorous imprisonment for three years and fine of Rs. 250/- and in default of payment of fine simple imprisonment for two months for offence punishable u/s 363 of the Indian Penal Code and rigorous imprisonment for one year and fine of Rs. 100/- and in default of payment of fine simple imprisonment for one month for the offence punishable u/s 506 (2) of the Indian Penal Code. The Appellant accused shall be entitled to set off and all the sentences of imprisonment awarded to him shall run concurrently.