Jashiben Bharatbhai Salat vs State of Gujarat

Mr. Justice D.H. Waghela

Learned counsel Mr. Apoorva Dave appears for the appellants in Criminal Appeal Nos.890 and 892 of 2007, and learned counsel Mr. Pratik Barot has appeared by way of legal aid for the appellant in Criminal Appeal No.391 of 2010.

It was, on instruction, submitted by both the learned counsel that the appeals were restricted to urging the Court to reduce the sentences in the peculiar facts and circumstances of the case. It was pointed out and there is no dispute about the facts that the original complaint in respect of the offences punishable under sections 363, 366 and 376 of IPC was lodged on 17.5.2006, after six months of commission of the offences. According to the prosecution case and deposition of the victim (PW.2, Exh.15), she was born on 01.6.1992. Appellant Jashiben, who is a lady having two children at the relevant time, had taken her to another village and had met the other appellant, namely Pravinbhai, who was working as a conductor in a jeep. Then the victim was kept in a room by the aforesaid two accused persons. Thereafter she was sent with the third accused person to Uttar Pradesh and then he was alleged to have committed rape. The victim admitted in her examination in-chief that she had stayed with the third accused person for three months and after being brought by the police from Uttar Pradesh, she had refused to go to her parents'' place. She also admitted that Ms. Jashiben was her friend since two years. She also deposed that when she was being taken to Uttar Pradesh, she had realized that the main accused person was not taking her to any relative''s place, but she had not made any hue and cry about it. While staying with the accused person for months, the victim had not made any complaint either to the mother of the accused or to any of their neighbours.

By virtue of the impugned judgment and order, two of the appellants, namely Pravinbhai and Jashiben, are convicted for the offences punishable under sections 363 and 366 read with section 114 of IPC as also for the offence punishable u/s 376 read with section 114 of IPC. The third accused person, namely Ashokkumar Thakur, is convicted for the offence punishable u/s 376 and sentenced to ten years of imprisonment, even as the other appellants are also sentenced to ten years of imprisonment and fine.

It was argued for the appellants that nearly five years of imprisonment has been undergone by each of the appellants, even as appellant Jashiben has a third child born in jail. It was submitted that the sentences imposed by the impugned judgment are irrational and untenable in the eye of law, insofar as two of the appellants could not have been convicted for the offence punishable u/s 376 of IPC. Learned counsel relied upon recent judgment of the Supreme Court in State of Rajasthan Vs. Hemraj and Another, to submit that section 376 of IPC could not be applied to a female accused person. It was further submitted that the offences were sought to be made out by the prosecution mainly on the basis that the victim was aged 15 years at the time of the offence due to which her consent in running away with the appellants for her own reasons could not be relevant.

It was fairly stated by learned A.P.P., on the basis of jail record, that one of the appellants, namely Pravinbhai, was already released on bail after undergoing about five years of imprisonment at the age of 26. The other appellant Jashiben, also aged 26, has already undergone five years of imprisonment and the third accused person Ashokkumar Thakur, aged 28, has already undergone five years and six months of rigorous imprisonment and if the period of remission to which he would be entitled is added to that term, he would have nearly completed seven years of minimum imprisonment. It was also stated, on the basis of jail record, that nothing adverse was recorded or reported against the appellants and whenever they have been released on temporary bail, they have usually returned to jail in time.

Thus, in the above facts and circumstances, the victim appeared to have left her house on her own rather than being abducted and there was no evidence of any act of force or violence by any of the appellants on the victim. Having regard to the age and jail record of the appellants, it appears to be necessary to reduce the sentences, as no useful purpose could be served by further imprisonment of the appellants. Therefore, the appeals are partly allowed and the impugned judgment and order of sentences is modified to the extent that the term of imprisonment already undergone by the appellants shall be the period of sentences and the order of fine made against appellant Jashiben shall stand set aside. Accordingly, the appellants, who are still in jail, shall be set at liberty at the earliest upon payment of fine and executing their personal bonds of the minimum required amount in terms of section 437-A of Cr.P.C. In view of precarious financial and family condition of the female convict Jashiben, she shall be provided by the jail authorities the service of Welfare Officer of the jail concerned for her rehabilitation and/or return to her family.