Manojkumar Premkumar Varma vs State of Gujarat

Z.K. Saiyed, J.—By way of present appeal filed u/s 374 of the Code of Criminal Procedure, 1973, the Appellant-original accused has prayed to quash and set aside the judgment and order of conviction and sentence dated 18th May, 2000 passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 233 of 1999 whereby the learned trial Judge was pleased to convict the Appellant-accused for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. The learned trial Judge has convicted the Appellant for the offence punishable u/s 363 and sentenced him to undergo rigorous imprisonment for a period of three years, and also imposed fine of Rs. 1,000/-, and in default of payment of fine, sentenced him to undergo simple imprisonment for a further period of four months. The Appellant was also convicted for the offence punishable u/s 363 and was sentenced to undergo rigorous imprisonment for a period of five years, and also imposed fine of Rs. 1,500/-, and in default of payment of fine, sentenced to undergo simple imprisonment for a further period of four months. The Appellant was also convicted for the offence punishable u/s 376 and was sentenced to undergo rigorous imprisonment for a period of seven years, and also imposed fine of Rs. 2,500/-, and in default of payment of fine, sentenced to undergo simple imprisonment for a further period of six months.

As per the case of the prosecution, prosecutor was aged about 18 years at the time of offence. On 8th April, 1999, the prosecutor started from her house to teacher''s place. However, when up to 3.00 hours since the prosecutor did not return to her parental house, her parents started inquiring about the prosecutor. It is also the case of the prosecution that from neighbor''s house that the prosecutor has been sent to Haryana with the present Appellant and other accused. On inquiring on telephone, the present complainant was informed that they should not try to find out the prosecutor since she is in the custody of the Appellant and other accused persons. Therefore, after a period of eight days, FIR came to be registered with Kadi Police Station for the offences punishable under Sections 363 and 366 read with Section 376 of the Indian Penal Code.

Thereafter, statements of the complainant and other witnesses and prosecutor as well as the Appellant came to be recorded. Thereafter, as the sufficient evidence was found, charge-sheet came to be filed against the Appellant. Thereafter, charge was framed against the Appellant. The Appellant-accused has pleaded not guilty and claimed to be tried.

In order to bring the home the charges leveled against the Appellant-accused, the prosecution has examined witnesses in support of their case.

Thereafter, after examining the witnesses, further statements of the Appellant-accused u/s 313 of the Code of Criminal Procedure, 1973.

After considering the oral as well as documentary evidence and after hearing the parties, the learned Additional Sessions Judge, Mehsana, vide the impugned judgment and order dated 18th May, 2000 held the Appellant-accused guilty to the charges leveled against him as stated aforesaid. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Mehsana, the Appellant has preferred the present appeal.

Heard Mr. Devang Joshi, learned Counsel for Mr. P.R. Nanavati, learned Counsel for the Appellant and Mr. R.C. Kodekar, learned Additional Public Prosecutor for the Respondent-State.

Mr. Joshi, learned Counsel for the Appellant, has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted that from the evidence produced on record, the prosecution has failed to prove its case beyond reasonable doubt. He has also contended that there was love affair between the Appellant and the prosecutor. He has also contended that both were stayed together for more than 14 days and during these days, the prosecutor has never made any complaints to anybody. This shows that there was a consent of the prosecutor. He has further contended that the learned trial Judge has committed grave error in believing the age of the prosecutor less than 16 years. The age of the prosecutor is proved beyond reasonable doubt through Exhibit 25 and 26. He has also contended that the learned trial Judge has not considered the oral as well as documentary evidence produced on record and wrongly convicted the Appellant. He has further contended that he is arguing the matter only on the point of quantum of punishment and not arguing the matter on merits of the case. He has also contended that the Appellant was of 20 years of age at the event of offence. The Appellant is very poor person. He has also relied upon judgment reported in Alamelu and Another Vs. State represented by Inspector of Police, in case of Rangaswamy and Anr. v. State, Represented by Inspector of Police and contended that the Supreme Court has dealt with the similar issue in that case. Supreme Court in that judgment has observed that conviction on uncorroborated evidence of prosecutor is not just and proper. Supreme Court has also observed the conduct of the prosecutor in that case. He, therefore, contended case of the Appellant is required to be considered in lenient view and looking to the overall facts and circumstances of the case, sentence may kindly be reduced.

Heard Mr. R.C. Kodekar, learned Additional Public Prosecutor for the Respondent-State. He has supported the judgment and order of conviction passed by the learned trial Judge. He has contended that looking to the charge framed against the Appellant, order passed by the learned trial Judge is absolutely just and proper. He has also read the documentary evidence produced on record and contended that learned trial Judge has not committed any error in convicting the Appellant-accused. He has also read the oral evidence of the prosecutor and Rule 130 of the Bombay Primary Education Rules and contended that the prosecutor was less than 16 years of age at the time of incident. He has also contended that the learned trial Judge has rightly convicted the Appellant for the charges leveled against him. He, therefore, contended that the present appeal is required to be dismissed.

I have gone through papers produced before me and the judgment and order passed by the learned trial Judge. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned Counsel for the parties.

Looking to the facts and circumstances of the case and looking to the evidence on record, it is true that the learned Judge has considered oral as well as documentary evidence and prima-facie agree with the findings recorded by the learned Judge. Even looking to the submissions advanced by the learned Counsel for the Appellant and circumstances of the case, if the sentence imposed upon the Appellant is reduced, same would meet with the ends of justice. Even on the ground of sympathy also sentence is required to be reduced. I am also of the opinion that the sentence is very harsh in nature and if the same be reduced to five years instead of seven years for the offences punishable u/s 376 of the Indian Penal Code, the same would meet with the ends of justice.

Hence, in view of the foregoing reasons, present appeal is partly allowed. The judgment and order of conviction dated 18th May, 2000 passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 233 of 1999, is hereby confirmed; however, the judgment and order of conviction dated 18th May, 2000 passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 233 of 1999 is hereby reduced and modified to the extent that now the Appellant shall have to undergo rigorous imprisonment for a period of five years for the offence punishable u/s 376 of the Indian Penal Code instead of rigorous imprisonment for a period of seven years for the said offence. Rest of the judgment and order dated 18th May, 2000 shall remain unaltered. The Appellant-accused is on bail. This bail bond shall stand cancelled. The Appellant-accused is, therefore, directed to surrender himself before the Jail Authority within a period of four weeks from today, failing which the trial Court concerned is directed to issue Non-boilable warrant against the Appellant-accused to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.