JAGDISH @ BHAIYA SHANTARAM PATIL & ANR. vs STATE OF GUJARAT

The present appeal is filed by the appellants-convicts being aggrieved and dissatisfied with the judgment and order dated 01.05.2013 passed by the learned Special Judge, Vadodara, whereby the learned Trial Court convicted and sentenced both the accused-convicts as under: (1) To undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/- each and in default to undergo further simple imprisonment for two months for the offence under Section 363 of the Indian Penal Code.

(2) To undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/- each and in default to undergo further simple imprisonment for two months for the offence under Section 366 of the Indian Penal Code. (3) To undergo rigorous imprisonment for ten years and to pay fine of Rs.5,000/- each and in default to undergo further simple imprisonment for six months for the offence under Section 376(2)(g) of the Indian Penal Code.

(4) To undergo rigorous imprisonment for two years and to pay fine of Rs.500/- each and in default to undergo further simple imprisonment for fifteen days for the offence under Section 506(2) of the Indian Penal Code (5) To undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/- each and in default to undergo further simple imprisonment for two months for the offence under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

(6) To undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/- each and in default to undergo further simple imprisonment for two months for the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. (7) All the sentences are directed to run concurrently.

The brief facts leading to the filing of the present case are as under:

1 That the present incident happened between 01:00 p.m. and 07:00 a.m. from 12.04.2011 to 13.04.2011, in second floor of Block No.D-4/5 in Narmada Colony near area known as Ajwa within the jurisdiction of Makarpura Police Station, Dist.: Vadodara for which the complaint was filed on 14.04.2011 by the victim-girl for the alleged offences.

2 According to the prosecution case, on the day of incident, the victim-girl had gone in the market to purchase Farali Chevda for her grandmother and at that time, at about 01:00 p.m., both the appellants met the victim-girl, who were travelling on the motorcycle. It is alleged that both the appellants forcibly took her and made her to sit on the motorcycle, and thereafter, both the appellants took her at the scene of offence and committed rape on her without her consent. It is alleged that on the next day, the appellants had dropped the victim-girl at the corner of Hanuman Nagar. It is alleged that at that time, the victim-girl was threatened by both the appellants. It is alleged that on the next day, the victim-girl had gone to her school for giving examination of Sanskrut, and thereafter, due to fear of her parents, she had gone to the house of her friend. During noon hours, the father of the victim-girl, who was in search of her, came there and she was taken away by her father at his house. At that time, the victim-girl narrated the entire incident to him, and therefore, the victim-girl and her father went to the Police Station on 14.04.2011 and the victim-girl filed a complaint in Makarpura Police Station which was registered as I-C.R. No.107/2011 for the alleged offences.

After completion of the investigation, the chargesheet was filed before the learned Judicial Magistrate First Class, Vadodara. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") committed the said case to the Court of the learned Special Judge, Vadodara, which was thereafter numbered as Atrocity Case No.46/2011. Since they did not plead guilty and claimed to be tried, they were tried for the alleged offences.

At the time of trial, in order to bring home the charges levelled against the original accused, the prosecution examined 17 witnesses and produced 34 documentary evidences.

At the end of the Trial and after recording the statement of the accused-convicts under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned Trial Judge convicted them for the alleged offences. On completion of the trial, the Trial Court passed the judgment and order dated 01.05.2013.

Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Trial Court, the present appeal is preferred by the appellants-convicts mainly on the following grounds: (A) That the learned Trial Judge has erred in holding that odhani was found from the scene of offence which was recovered by the Investigating Officer.

(B) That the learned Trial Judge has erred in relying upon the medical evidence regarding sexual intercourse with her. (C) That the learned Trial Judge has failed to appreciate the following material aspects in its true perspective which has ended in miscarriage of justice:

(i) In order to determine the age of victim-girl, the prosecution has not produced any birth date certificate of any local authority i.e. panchayat, municipality or municipal corporation. (ii) Birth date certificates of the brothers and sisters of the victim-girl are not produced by the prosecution which were relevant to determine the age of the victim-girl.

(iii) Medical certificate to determine the age of victim-girl is produced at Exh.:25 which does not establish that the victim-girl was aged 13 years at the relevant time. Medical Officer-Dr.Dimpal Solanki Exh.:24 has clearly deposed in his examination-in-chief that she cannot determine the age of the victim-girl on the basis of x-rays.

(iv) Looking to the evidence of Medical Officer-Dr.Neha Sheth Exh.:12, appellant no.2 has not committed sexual intercourse with the victim-girl as per the history narrated by appellant no.1-Jagdish @ Bhaiya Shantaram Patil before Medical Officer-Dr.Neha Sheth. (v) No any external injuries were found on the person of the victim-girl.

(vi) The complaint is filed at a belated stage.

Learned advocate for the appellants-accused submits that the appellants are having good case on merits as there are many flows in the judgment of the Trial Court. It is submitted that panch-witnesses have turned hostile and they have not supported the prosecution case. It is also submitted that PW:9-Bhikhabhai has identified only one accused but the said witness had turned hostile. It is submitted that the date, time and place of the incident is not clear from the evidence on record and there are many contradictions about the date, time and place of the incident. It is further submitted that PW:3 Dr.Mahendra Jadav and PW:4 Dr.Gunvant Shah have also stated that there are no external marks of injuries on the body of the victim-girl and the medical evidence does not corroborate. Learned advocate for the appellants has also submitted that the FSL report cannot be treated as reliable piece of evidence as except the "Odhani" most of the samples have been mentioned as undecided. It is also submitted that there are discrepancies in the oral evidence given by the victim-girl as well as other prosecution witnesses in respect of "Odhani". It is also submitted that the learned Court-below has not properly appreciated the evidence on record and more particularly the evidence of the victim-girl as well as the medical evidence on record. It is also submitted that there are many discrepancies in the date, time and place of incident also. It is further submitted that the victim-girl has also filed similar type of complaint against some of the persons in past and they have been convicted. Learned advocate for the appellants further submits that the learned Court-below has not properly appreciated the evidence on record and there are infirmities in the order passed by the learned Court-below, and therefore, the conviction and sentence imposed upon the present appellants are required to be set aside and the appellants may be acquitted from the charges levelled against them. In the alternatively, it is submitted that if the Court is not inclined to disturb the order of the conviction passed against the appellants, alternatively sentence may be reduced to some extent as the appellants have by now undergone more than six years of sentence. It is submitted that the jail conducts of the appellants are also good and they were released on temporary bail on few occasions during the period undergone, but they have not misused the liberty which was granted by the Court and reported in time on completion of temporary bail period. Learned advocate for the appellants has placed on record the affidavits filed by the mothers of both the appellants viz. Shobhaben Shantaram Patil (mother of appellant no.1) and Gitaben Arvindbhai Valand (mother of appellant no.2). It is submitted that in the said affidavits, mitigating circumstances and factors are narrated by both the mothers, wherein it is stated that the father of appellant no.2 is suffering from hypertension and back-related problems and father of appellant no.1 is also suffering from Metastatic Prostate Cancer (4th Stage) and in support thereof, certificate of father of appellant no.1 issued by Kailash Cancer Hospital and Research Center on 01.07.2017 is also annexed with the affidavit. It is also stated that appellant no.1 is having married sister aged about 34 years and she is also having five years minor son, but due to matrimonial dispute, she has returned to her parental home and now appellant no.1 will have to take responsibility of maintaining the family members because of critical health conditions of his father and no other earning members are in the family. It is stated that appellant no.2 has also stated in her affidavit describing mitigating circumstances and factors to show that appellant no.2 is having two younger brothers aged about 29 years and 27 years respectively and both of them are marriageable age. It is also stated that the father of appellant no.2 is also suffering from hypertension and backrelated problems and he is undergoing treatment for the same from the ESIS Government Hospital, Vadodara and in support thereof, the treatment case papers of father of appellant no.2 are also annexed with the affidavit. It is submitted that the financial conditions of both the family members are not good. Learned advocate for the appellants, upon instructions of mothers of the appellants, who are present before this Court, submits that the appellants will not indulge in this kind of activities in future and will not cause any kind of harassment to the victim-girl and her family members.

Learned Additional Public Prosecutor appearing for the respondent-State submits that the learned Trial Court has not committed any error while appreciating the evidence on record. It is submitted that the evidence of prosecution witnesses and more particularly the evidence of victim-girl as well as documentary evidence have been appreciated by the learned Trial Court in its proper perspective, and thereafter, the learned Trial Court has reached to the conclusion that the offence punishable under Section 376 of the Indian Penal Code is established against the present appellants. It is further submitted that the evidence given by the victim-girl as well as the medical officer was corroborated by the FSL/serological report, and therefore, the order of conviction and sentence passed by the learned Trial Court convicting the present appellants under Section 376 of the Indian Penal Code may not be disturbed. Learned APP while opposing the present appeal submits that the learned Court-below has properly appreciated the evidence and there is no infirmity with the findings recorded by the learned Court-below. Therefore, present appeal may be dismissed and the order of conviction and sentence may be confirmed. In response to alternative submission made by the learned advocate for the appellant with regard to reduction of sentence is concerned, it is submitted by the learned APP that the mothers of the appellants have filed affidavits and pointed out certain mitigating circumstances, but at the time of considering such circumstances, this Court may also consider the nature and gravity of offence as also trauma faced by the victim girl. If this Hon''ble Court is inclined to reduce the sentence then victim may be appropriately compensated and appropriate order that may be deemed fit and proper by this Court may be passed considering the facts and circumstances of the case.

Regard being had to the above submissions and considering the oral as well as documentary evidence on record, it appears that the learned Court-below has taken into consideration the evidence on record such as the deposition given by the victim-girl as well as medical evidence, serological report, etc.. In view of the findings recorded by the learned Court-below, it appears that the learned Court-below has not committed any error in appreciation of the evidence on record and the order of conviction and sentence passed by the learned Court-below looking to the evidence on record is not required to be disturbed, but so far as the sentence part is concerned, in view of the submission advanced by the learned advocate for the appellant and averments made in the affidavits filed by mothers of the appellants before this Court and especially mitigating circumstances such as health condition of father, social responsibilities and financial conditions described in the said affidavits, this Court is of the view that considering the period of sentence undergone by the appellants and their jail conduct, the present appeal is required to be partly allowed and the judgment and order dated 01.05.2013 passed by the learned Special Judge, Vadodara in Special Atrocity Case No.46/2011 qua conviction is ordered to be confirmed and the sentence imposed by the learned Special Judge, Vadodara for the offence punishable under Section 376(2)(g) of the Indian Penal Code is required to be modified and reduced from ten years to seven years rigorous imprisonment. While doing so considering the position of victim girl, with a view to compensate to some extent in terms of money which perhaps may be useful in rehabilitation process, the fine amount imposed by the learned Special Judge, Vadodara is required to be enhanced to Rs.75,000/- each.

Accordingly, the judgment and order dated 01.05.2013 passed by the learned Special Judge, Vadodara in Special Atrocity Case No.46/2011 qua conviction is ordered to be confirmed. The sentence imposed by the learned Court below is ordered to be modified and reduced from ten years to seven years rigorous imprisonment. The present appeal is partly allowed. After payment of fine amount, the appellants on completion of their sentence be released from the jail if not required in any other offence. The fine amount deposited by the appellants shall be disbursed in favour of the victim-girl by account payee cheque after proper verification. Rest of the judgment shall remain unaltered. Record and Proceedings be sent back to the Trial Court concerned forthwith.