Navinbhai Govindbhai Suthar vs State of Gujarat

S.G. Shah, J.—The appellant is convicted by the Ld. 2nd Addl. Sessions Judge, Deesa, Banaskantha, vide judgment and order dated 22/10/2008 in Sessions Case No. 21/2008 for the offences punishable under sections 363, 366 and 376 of the Indian Penal Code [for short ''IPC'']. The Sessions Court has awarded sentence of seven years'' rigorous imprisonment [RI] and fine of Rs. 1,000/- and in default of payment of fine, further simple imprisonment [SI] for one month, for the offence punishable u/s 376 of the IPC; whereas sentence of five years'' RI and fine of Rs. 500/-and in default of payment of fine, further SI for 15 days, for the offence punishable u/s 363 of the IPC. No separate sentence was awarded u/s 366 of the IPC. Both the sentence was ordered I to run concurrently. Therefore, practicably the appellant has to undergo imprisonment for total seven years. Heard Ld. Advocate Ms. Krishna Mishra for the appellant and Ld. APP Ms. Jirga Jhaveri for the respondent.

The sum and substance of the appellant''s case is very short, to the effect that since the appellant had undergone the imprisonment for almost seven years and he would be released on completion of such period on 24/8/2013, considering the several judgments rendered both, by the Hon''ble Apex Court and this Court, irrespective of actual details of the case, he should be given benefit of such judgments and should be released at the earliest, even if the order of conviction is confirmed, then by reducing the sentence for the period of imprisonment actually undergone by the appellant till the date of the judgment. In support of such submission, the appellant is relying upon the decisions of the Hon''ble Apex Court rendered in the cases of Ravinder v. State of M.P. Reported in [2006] 9 S.C.C. 590 and Raj Kumar alias Raju Yadav alias Raj Kumar Yadav Vs. State of Bihar, . The appellant has also relied upon unreported judgments of this Court [Coram : Z.K. Saiyed, J.] rendered in Criminal Appeal No. 188/2009 dated 30/8/2010 and Criminal Appeal No. 1243/2008 dated 7/2/2011.

Therefore, before discussing the factual details, it would be appropriate to examine and scrutinize such reported cases. So far as the judgment of Raj Kumar''s case [supra] and Ravinder''s case [supra] of the Hon''ble Apex Court are concerned, both are short judgments, wherein the Hon''ble Apex Court, has without entering into the details of evidence, in one case because the FIR was lodged after three years and because there was no confirmatory evidence of the victim in the evidence of the doctor, considering peculiar facts and circumstances of the case, the Hon''ble Apex Court deemed it appropriate to reduce the sentence awarded to the appellant to the period already undergone, which was almost three and half years'' imprisonment against sentence of seven years awarded by the trial Court. Whereas in the case of Ravinder [supra], also the Hon''ble Apex Court has reduced the period of sentence making it limited to period already undergone by the appellant before it. Though in both such cases, conviction was u/s 376 of the IPC, it cannot be said that because the Hon''ble Apex Court has reduced the period of sentence in these two cases, it is to be reduced in all cases irrespective, of any other consideration.

Ld. Advocate for the appellant has also submitted that since this Court has in the above referred two unreported judgments of this Court, given similar benefit to the accused even though the victim was below 16 years of age, such benefit I should be extended to the present appellant also. Suffice it to say that only because in some cases the Court has given some benefit to the accused, the same benefit cannot be granted to all the accused in all cases without considering the facts, circumstances and evidence on record as well as nature of offence and other relevant material. Amongst above referred two unreported judgments in Criminal Appeals, in Criminal Appeal No. 188/2009, the Court has simply stated that when the learned advocate appearing for the appellant is not arguing the matter on merits, but arguing the matter only on the quantum of punishment, period of sentence is required to be reduced from seven years to five years. Whereas in Criminal Appeal No. 1243/2008, with the same ground, the Court has deemed it fit to reduce the sentence stating that the age of the appellant is also to be considered.

However, in my opinion, conviction and sentence is to be determined bases upon the facts, circumstances and evidence of each case; whereas such precedent would be considered only for interpretation of law and not for determination based upon the facts and evidence on record, more particularly when in such a serious offence, victim is below 16 years.

If we examine the facts, circumstances and evidence on record, it is undisputed fact that the victim was less than 14 years of age at the time of offence and, therefore, the defence version, both, before the trial Court and before this Court regarding consent by the victim has no substance. It is settled legal position that the consent by minor is no consent. More particularly in such offences, such consent alone cannot be taken as a ground for acquittal of the accused when other evidence categorically confirms the commission of offence as alleged and proved by the prosecution.

This being the regular Criminal Appeal, it would be appropriate to scrutinize and evaluate the evidence so as to confirm that the trial Court has not committed any error in confirming conviction. However, considering the arguments of the learned advocate for the appellant, which are limited only on two points i.e. [i] there was consent by the victim and [ii] since the appellant has undergone imprisonment for more than six years out of total sentence of seven years, we have to examine lonely these two points while deciding this appeal.

So far as the first ground regarding consent is concerned, there is no substance in such ground for the simple reason that there is no dispute that the victim was less than 14 years of age on the date of incident and, therefore, when victim is a minor girl and appellant is a major person about 21 years of age, and when evidence categorically shows that he has given some temptation and used some intoxicated material so as to make the victim unconscious for some time. Even if the victim says that she know the appellant for last one year, that normal and formal relation as a neighbour or person meeting regularly at particular place or shop, cannot be treated as a love affairs as pleaded and alleged by the appellant. The fact also remains that there is ample evidence that the appellant has taken away the victim by some temptation of giving money and some other things and then committed the offence as alleged. So far as such offence u/s 376 of the IPC is concerned, there is categorical positive evidence by all concerned witnesses including victim and when the appellant is claiming a ground of consent, then practically he is admitting the offence being committed by him, which is otherwise punishable u/s 376 of the IPC.

So far as consent is (concerned, the trial Court I has categorically discussed the relevant evidence and considering the evidence in the form of date of birth certificate at exhs. 45 and 47, which confirms that the victim was only of 14 years on the date of incident. There is no reason to give benefit of consent by the victim irrespective of her evidence wherein appellant was able to get a positive statement from the victim that she was knowing the appellant for long time and that she has not made complaint when offence was committed at different places like Palanpur and Ambaji. It is sufficient to note that during the cross-examination, the victim has given abrupt answers and those answers were recorded as it is. However, such evidence cannot be read in isolation of other supporting and connecting evidence, as the entire evidence is to be read together. If we read entire evidence of the victim, it cannot be ignored that in the cross-examination, she has categorically stated about the offence being committed by the appellant and during cross-examination, not a single question was put to her about such offence or activity of the appellant, which otherwise results into commission of offence. Whereas all other questions which may otherwise relevant to verify the veracity of the victim, but if during the cross-examination, defence version fails to confirm that no offence has been committed by the accused, then such cross-examination, may not help the accused - appellant to get benefit in such cases wherein victim is minor and her consent alone is not enough. On the contrary, if we examine the deposition of victim at exh. 12, at-least in the cross-examination also, she has denied a suggestion that offence u/s 376 of the IPC was not committed by the appellant - accused, but committed by his friend, however she has falsely involved the appellant. Thereby, practically it was asked to her that offence under sec. 376 of the IPC was committed with her not by the appellant but by the friend of the appellant and while answering such suggestion, if the victim confirms that the offence is committed by the appellant and not by his friend and throughout the trial, the appellant - accused has taken defence of consent only and when the consent is not material considering the age of the victim, the entire defence itself goes against the appellant himself. Now, therefore, it is clear that practically the appellant has admitted even during the trial that some offence has been committed with the victim u/s 376 of the IPC, but if it was by him, then it was by consent or it is committed by his friend and not by him. The fact also remains that the victim has categorically identified the appellant before the Court and, therefore, there is no substance in the suggestion that the victim has given false name of the appellant. So far as difference in the name of the appellant is concerned, now at this stage it is not much material because there is no evidence on record that accused was not present appellant - Navinbhai Govindbhai Suthar, but some other person, namely Vikrambhai Nayi. Therefore, so far as the first defence of the appellant regarding consent is concerned, there is no substance.

10 So far as argument regarding giving benefit of above cited decisions are concerned, I am of the opinion that practically when the appellant has abducted minor girl, his case falls u/s 376[2][j] of the IPC, wherein minimum sentence prescribed is 10 years, where such offence is committed on woman, who is incapable of giving consent. Though such section refers to word "woman", it goes without saying that when victim is a minor girl, proviso to section 376 makes it clear that a woman who does not physically resist act of the penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity and explanation Sixthly u/s 376 categorically makes it clear that when such act is committed even with or without consent when she is under 18 years of age, it would amount to an offence u/s 376. It is sufficient to record that both, in sections 375 and 376, reference is of ''woman'' irrespective of her age and no-where I the word ''girl'' is used and, therefore, when such offence is committed against a minor, I am of the opinion that provision of section 376[2][j] would also applicable since minor is incapable of giving consent and if it is proved that such consent is not proper as per 6th explanation u/s 375, accused cannot get any advantage of such consent. Along with all such fact, when minimum punishment is prescribed u/s 376 of the IPC as rigorous imprisonment for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years, I do not see any reason to reduce the minimum sentence prescribed under the Act. Suffice it to say that Ld. Trial Judge has awarded only seven years'' imprisonment, which is minimum sentence to be awarded in such cases and, therefore, when above referred citations of the Hon''ble Apex Court do not confirm age of the victim, those citations do not help the appellant. Whereas unreported judgments of this Court [Coram: Z.K. Saiyed, J.] are on different count and I do not agree with such reason to reduce the minimum sentence as prescribed under the law itself.

In view of the above facts and circumstances of the case, I do not find any substance in the arguments of the Ld. Advocate for the appellant. Since the appeal was argued on limited points, I do not see any reason to discuss all other evidence. However, I have carefully gone through the evidence. I am satisfied that the trial Court has considered all the evidence on record in proper manner while coming to the conclusion that the appellant has committed the offence as alleged against him and, therefore, the order of conviction does not require to be interfered.

So far as giving benefit of reducing the period of sentence is concerned, the record shows that the appellant has repeatedly tried to get the matter fixed at the earliest on different occasions. However, at all relevant time, the concerned Court had refused to expedite the appeal or to fix a date except at one point of time on 8/11/2011, when the Court has ordered that matter may be listed for final hearing. However, in absence of record and proceedings, the matter could not be listed and may be because of paucity of time, the Court could not take up the matter for final hearing till date. Therefore, at present though only couple days are left for the appellant to be released from the prison, since he is completing the total period of seven years, there is no reason or substance in the argument that at-least benefit of some days may be granted to the appellant, more particularly when there is no illegality in the impugned judgment and order. In view of the above facts, circumstances and discussion, since there is no substance in the appeal, it is dismissed.