Jigneshbhai Kanubhai Kahar 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 29.11.2008 passed by the learned Sessions Judge, Navsari in Sessions Case No. 83 of 2007, whereby the learned Sessions Judge has convicted the Appellant for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code. For the offence punishable u/s 363 of the Indian Penal Code, the Appellant was ordered to undergo R.I. for three months and to pay a fine of Rs. 1000/-, in default, to undergo further S.I. for three months. Learned Sessions Judge was pleased to convict and sentence the Appellant to undergo R.I. for 5 years and to pay a fine of Rs. 2000/-, in default, further S.I. for six months for the offence punishable u/s 366 of the Indian Penal Code and for the offence punishable u/s 376 of the Indian Penal Code, learned Sessions Judge also ordered the Appellant to undergo R.I. for seven years and fine of Rs. 10,000/-, in default, to undergo one year S.I. The brief facts of the prosecution case are as under:

As per the case of the prosecution, on 13.9.2007, at about 6:00 a.m., the daughter of the complainant was abducted by the accused and thereby committed rape upon the daughter of the complainant. Therefore the complaint was lodged before the Navsari Town Police Station which was numbered as C.R. No. I-83 of 2007 for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, against the accused - Appellant.

Thereafter, the statements of the witnesses were recorded, panchnama was drawn and accused was arrested. Against the Appellant, charge-sheet was filed and thereafter, Sessions Case No. 83 of 2007 was tried before the learned Sessions Judge at Navsari.

Thereafter, the charge was framed against the Appellant at Exhibit 8. The Appellant pleaded not guilty and claimed to be tried.

To prove the case against the Appellant, the prosecution has produced documentary evidence and also examined in all 14 witnesses before the Sessions Court.

Thereafter, after examining the witnesses, further statement of the Appellant -

accused u/s 313 of the Code of Criminal Procedure 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 Sessions Judge, Navsari vide judgment and order dated 29.11.2008 held the Appellant - accused guilty to the charge levelled against him and sentenced as stated above, which is impugned in this Appeal.

Therefore, the Appellant has challenged the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge, Navsari by way of present Criminal Appeal.

Learned advocate Mr. P.S. Gondaliya appearing on behalf of the Appellants submitted that there are number of contradictions, addition and omission in the deposition of witnesses and learned Sessions Judge, while passing the order, has not properly appreciated the evidence on record. He further submitted that there is not a single independent witness has supported the case of the prosecution. Even the prosecutrix herself admitted in her deposition that she was in love with the Appellant - accused and the prosecutrix left her house on her own. The prosecutrix herself admitted that she was aged about 17 years of age. He further submitted that learned Sessions Judge has wrongly relied upon the school leaving certificate and school register for birth date of the prosecutrix.

Learned advocate Mr. Godaliya submitted that he is not arguing this matter on merits, but arguing on the quantum of punishment. He submitted that the sentence imposed by the learned Sessions Judge is very harsh in nature and looking to the young age of the accused, sentence imposed upon the Appellant is required to be reduced in so far it relates to sentence imposed upon the Appellant for the offence punishable u/s 376 of the Indian Penal Code.

The learned APP Mr. Jani for the State strongly opposed the submissions made by the learned advocate for the Appellant. It was contended by learned APP that the judgment and order of the Sessions Court is just and proper and as per the provisions of law; the Sessions Court has properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved the whole ingredients of the evidence against the present Appellant. But he submitted that if the sentence is reduced to the extent of 5 years instead of 7 years, the State has no objection about the same.

I have perused the judgment and order and reasons given by the learned Judge also. I have perused the record of the case and also considered the submissions made by the learned advocates for the parties. After the considering the evidence, the learned Sessions Judge has rightly held the Appellant guilty for the offences alleged against him and sentenced the Appellant and the Appellant was ordered to undergo R.I. as stated above.

I have considered the submission about the quantum of punishment made by the learned advocate. The accused was ordered to undergo R.I. for seven years and fine of Rs. 10,000/-, in default, further S.I. for one year for the offence punishable u/s 376 of the Indian Penal Code. As per the submission of the learned advocate for the Appellant, the Appellant is a very younger age of about 26 years and bread winner of his family, therefore, his sentence is required to be modified to the extent of five years instead of seven year. After considering the submission about quantum of punishment made by the learned advocate of Appellant, this Court is not deciding this matter on merits, but only considering the quantum of punishment and the learned APP submitted that if the sentence is reduced to extent of five years instead of seven years, the State has no objection for the same. Therefore, this Court is of the opinion that the Appellant is aged about 26 years and bread winner of the family and also the State has no objection, therefore, the sentence is modified to the extent of five years in place of seven years

In view of the above, the Appeal is partly allowed. The judgment and order dated 29.11.2008 passed by the learned Sessions Judge, Navsari in Sessions Case No. 83 of 2007, is hereby modified to the extent of 5 years instead of 7 years imposed by the learned Sessions Judge. If the Appellant is on bail, he is hereby directed to surrender before the Jail Authority within four weeks from the date of this order, failing which, the concerned Court shall issue non-bailable warrant to effect the arrest of the Appellant. Rest of the judgment of the learned Sessions Court shall remain unaltered. Record and proceeding be sent back to the concerned trial Court.