Jagatsinh Sardarsinh Parmar vs State Of Gujarat

[1] The present appeal has been filed by the appellant­accused against the judgment and order dated 10.01.2013 passed by learned Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No. 129 of 2011, whereby the appellant­accused was convicted for the offence punishable under Sections 363, 366, 376 of the Indian Penal Code and was acquitted from the charges of Sections 504, 506(2) of the Indian Penal Code. The appellant was convicted and sentenced to undergo rigorous imprisonment for a period of two years for the offence under Section 363 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for a period of three years for the offence under Section 366 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for a period of ten years and ordered to pay Rs.10,000/­ fine, for the offence under Section 376 of the Indian Penal Code, and in default, further rigorous imprisonment for two months. All the sentenced were ordered to run concurrently and the accused was given benefit of set off.

[2] The  case  of  the  prosecution  in  short  is that:­

2.1 It is alleged that the appellant kidnapped the prosecutrix, daughter of Pradhansinh Gandusinh Rathod­complainant, resident of Gambhirpura, Taluka and Village Prantij, who was born on 30.06.1999, under the pretext of buying some cutlery items for her and thereafter he took different villages. It is also alleged that the appellant had committed physical relation with her against her wish and will. Therefore, a complaint was lodged before the Talod Police Station for the offences punishable under Sections 363, 366, 376, 504 and 506(2) of the Indian Penal Code.

[3] In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge­sheet against the accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

3.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced several documentary as well as oral evidence.

3.2 At the end of trial, after recording the statement of the accused under Section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.

[4] Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.

[5] By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such.

[6] Mr.J.V.Japee, learned Advocate for the appellant has taken this Court through the entire records and proceedings and submitted that the appellant accused has already served out sentence for more than seven years out of ten years imposed by learned trial Court. He further submitted that at the relevant time, the victim was aged about 14 years and the appellant was aged about 25 years. He further submitted that the appellant accused has already suffered a lot and has undergone substantial part of sentence. If this Court is of the opinion for upholding conviction, then he has urged that since after passage of time, leniency may be shown in reducing the punishment awarded by the learned trial Court as such. He, therefore, urged to acquit the accused or in alternative to reduce the sentence

[7] On the other hand, Ms.Monali Bhatt, learned Additional Public Prosecutor has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellant accused. She further submitted that at the relevant time, victim was aged about 14 years, therefore, her consent, if any, becomes meaningless, and she was enticed away from lawful guardianship of her parents. She further submitted that taking into consideration the totality of the facts and circumstances of the case, learned trial Court has rightly inflicted punishment, which needs no interference by this Court.

[8] Heard Mr.J.V.Japee learned Advocate for the appellant and Ms.Monali Bhatt, learned A.P.P. for the State.

[9] On overall evaluation and after perusing the materials available on record, it appears that the prosecurix was indisputably below 16 years, whereas the accused was aged about 25 years and both are young age, and they decided to elope from fair at Bileshwar temple, and they visited several places and the accused as well as victim established physical relationship. Such fact is also getting corroboration from the medical evidence and other evidence.

[10] Taking into consideration the peculiar facts and circumstances of the present case and the fact that the accused was young age and the victim also showed her desire to elope with him, and therefore, they were well acquainted with each other. In that way of the matter and after efflux of time, this Court deems it fit to reduce the sentence imposed by the learned trial Court for the offence punishable under Section 376 of the Indian Penal Code, while upholding the conviction so recorded.

[11] In the result, the aforesaid Criminal Appeal filed by the appellant­accused stands partly allowed. The judgment and order dated 10.01.2013 passed by the learned Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.129 of 2011 is modified to the extent that conviction so recorded by learned trial Court is sustained. However, this Court deems it fit to reduce the sentence so imposed upon the appellant­accused from ten years rigorous imprisonment to eight years rigorous imprisonment for the offence punishable under Section 376 of the Indian Penal Code. Rest of the judgment remains unaltered. All the sentences shall run concurrently and other benefits for commutation and remission shall be available as per law. The Jail Authority shall immediately assess his undergone period of sentence and remission etc; and if, he has completed the sentence, the appellant­accused shall be released from jail forthwith, if he is no longer required in any other case. R&P be sent back to the learned trial Court forthwith.