Manuji Amraji Thakore vs State of Gujarat

Z.K. Saiyed, J.—The Appellant - original accused has filed this Appeal u/s 374 Cr.P.C., against the judgment and order of conviction and sentence dated 06.10.2006 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Patan, in Sessions Case No. 46 of 2006, whereby the learned Additional Sessions Judge has held the Appellant (ori. Accused No. 1) guilty (i) for the offence punishable u/s 363 of I.P. Code and sentenced him to suffer Rigorous Imprisonment for 5 (five) years and to pay a fine of Rs. 2,000/- i/d to further undergo SI for six months, (ii) for the offence punishable u/s 366 of I.P. Code and sentenced him to suffer Rigorous Imprisonment for 5 (five) years and to pay a fine of Rs. 2,000/ i/d to further undergo SI for six months, and (iii) for the offence punishable u/s 376 of I.P. Code and sentenced him to suffer Rigorous Imprisonment for 7 (seven) years and to pay a fine of Rs. 5,000/- i/d to further undergo SI for one year. The learned Judge order that all the sentences shall run concurrently.

The brief facts of the case of prosecution are that on 2.4.2006 the complainant gave a complaint that before one month the accused with the help of each other enticed his minor daughter from his custody and thereafter on 22.3.2006 the accused abducted the prosecutrix with an intention to commit sexual intercourse with her. The complainant and other relatives made a search for the prosecutrix but, neither the prosecutrix nor the accused were found. Thereafter the complainant lodged complaint with Harij Police Station. The Police registered the offence against the accused and carried out investigation. Thereafter, the accused were arrested.

Necessary investigation was carried out by the Police. The statements of the complainant and other witnesses were recorded. Thereafter, after completion of investigation, the charge-sheet against the accused came to be submitted before the Court. As the offences were triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The learned Additional Sessions Judge framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

To prove the case against the accused, the prosecution has examined the witnesses and also relied upon documentary evidence and at the end of trial, after recording the statement of the accused u/s 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Sessions Judge held the Appellant (original accused No. 1) guilty of the offence under Sections 363, 366 & 376 of I.P. Code and awarded the sentence as narrated herein above.

Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the Appellant - accused has preferred this Appeal.

Heard learned advocate Ms. Javnika Mehta for Ms. Rekha Kapadia, appearing on behalf of the Appellant - accused and learned APP Mr. H.H. Parikh, on behalf of the Respondent - State. I have gone through the judgment and order passed by the trial Court. I have also considered the documents produced on the record of the case.

Learned Advocate, appearing on behalf of the Appellant - accused, has contended that the Appellant - accused has not committed any offence as alleged in the charge-sheet. She has contended that looking to the oral as well as documentary evidence of the witness as well as the evidence of medical expert the Appellant has not committed the offence as alleged against him. She has contended that there are serious contradictions in the oral evidence of witnesses. Learned Advocate has also contended that she is not arguing the matter on merit. However, she has contended that the sentence awarded by the learned Judge is very harsh and contended that the Appellant was in jail since long and the said period may be treated as the sentence which he had already undergone, the same would serve the ends of justice. Therefore, some leniency may be shown towards the Appellant.

Learned APP has supported the judgment and order passed by the learned Sessions Judge and contended that looking to the seriousness of offence no interference of this Court is called for. He has contended that looking to the facts and evidence on records the learned Judge has rightly held the accused guilty for the offence alleged against him and, therefore, no interference is called for.

I have gone through the judgment and order passed by the learned Additional Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the parties. I have gone through the record and proceedings of the case. I have also gone through the oral as well as documentary evidence produced before me. I have also considered the judgment of the trial Court. From the evidence on record it clearly appears that the learned Judge has not committed any error in holding the Appellant - accused guilty for the offences charged against him. However, looking to the facts and circumstances of the case, in my opinion, the sentence awarded by the learned Judge is very harsh. The learned Advocate appearing on behalf of the Appellant has also not argued the matter seriously on merit and contended that the Appellant - accused is an illiterate and poor person and he is the bread-winner of the family and, therefore, some leniency may be shown towards the Appellant. From the Jail record, produced by the learned A.P.P., it appears that till date the Appellant has undergone sentence for more than 4 years and 7 months. Over and above, he has been given remission for 1 year, 3 months and 20 days. Therefore, till date he has undergone sentence for more than 6 years. Therefore, if the sentence awarded by the learned Judge is reduced to an extent that the sentence which the Appellant has already undergone may be treated as sentence, the same would serve the ends of justice.

In view of above, the Appeal is partly allowed. The judgment and order of conviction dated 06.10.2006 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Patan, in Sessions Case No. 46 of 2006 convicting the Appellant - accused for the offence punishable u/s 363, 366 & 376 I.P. Code is hereby confirmed. However, the sentence awarded by the learned Additional Sessions Judge, vide the impugned Judgment, is reduced to an extent that the period of sentence which the Appellant - accused has already undergone till date, may be treated as sentence awarded to the Appellant - accused. Rest of the judgment and order passed by the learned Sessions Judge is confirmed. Bail Bond, if any, shall stand cancelled. R & P to be sent back to the trial Court immediately.