Pravinsinh Mansinh Chauhan vs State of Gujarat

Z.K. Saiyed, J.—The present appeal, filed u/s 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction and sentence dated 31st May, 2008 passed by the learned 2nd Additional Sessions Judge, Sabarkantha at Himmatnagar, in Sessions Case No. 64 of 2007, whereby the learned 2nd Additional Sessions Judge was pleased to convict the Appellant for the offence punishable under Sections 363, 366, 376 and 506(2) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of seven years, and also imposed fine of Rs. 1,000/- to pay jointly, and in default of payment of fine, sentenced him to undergo simple imprisonment for a further period of six months. The learned Judge has also directed the Appellant to pay Rs. 10,000/- (Ten Thousand Only) as compensation to the parents of the victim, and in default of payment of compensation, the Appellant has to undergo simple imprisonment for a further period of six months.

The case of the prosecution in brief is that on 14th January, 2007 when the complainant was returning back from the house of one Rahulbhai, she was stopped by the present Appellant and other accused person, who came on bike. The Appellant forced the complainant to seat on bike and took the complainant to Bileshwar Patia and thereafter, the Appellant insisted the complainant to marry him and if the complainant refused to do so, he will kill her parents. Thereafter, the Appellant and other accused person took the complainant to Rakhial Railway Station and about 20.30 hours, other accused person returned to Talod. Thereafter, the Appellant took the complainant to Kalupur Railway Station and from their, at about 02.00 hours, the complainant was taken to Himmatnagar-Motipura where the Appellant had committed the offence under the Indian Penal Code as stated above. Therefore, a complaint to the said effect was lodged before the Talod Police Station being I-C.R. No. 07 of 2007.

Thereafter, necessary investigating was carried out and panchnama of seen of offence came to be drawn. Thereafter, after completion of investigation, the Investigating Officer had submitted the charge-sheet before the learned Judicial Magistrate, Prantij. However, the as the case was exclusively triable by the Court of Sessions, the same was transferred to the Sessions Court, Sabarkantha at Himmatnagar for further proceedings.

Thereafter, charge at Exhibit 3 came to be framed against the accused persons for the offences as mentioned above and read over to the accused persons. The accused persons did not plead guilty to the charge and claimed to be tried.

In order to bring home the charges against the accused persons, prosecution has examined in all 19 witnesses and also produced documentary evidence in support of its case.

Thereafter, after conclusion of oral as well as documentary evidence on the part of prosecution, further statement of accused person u/s 313 of the Code of Criminal Procedure, 1973 was recorded wherein the accused not pleaded guilty.

After hearing both the sides, the learned Second Additional Sessions Judge, Sabarkantha, at Himmatnagar, by his judgment and order of conviction and sentence dated 31st May, 2008, in Sessions Case No. 64 of 2007, convicted the Appellant as stated above.

Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence dated 31st May, 2008, passed by the learned Second Additional Sessions Judge, Sabarkanthat at Himmatnagar, the Appellant has preferred the present appeal before this Hon''ble Court.

Heard Mr. J.V. Japee, learned Counsel for the Appellant and Mr. H.L. Jani, learned Additional Public Prosecutor for the Respondent-State.

Mr. Japee has contended that the charge framed against the Appellant is defective. Mr. Japee has also read the contents of charge and oral evidence of prosecutrix and contended that the prosecution has failed to prove the case beyond reasonable doubt. He has contended that when the offence of rape is not proved beyond reasonable doubt and order of conviction and sentence is required to be quashed and set aside. He has also contended that the judgment and order of conviction and sentence is bad in law and is required to be set aside. Mr. Japee has also contended that as per the case of the prosecution, though the prosecutrix was taken by the Appellant and had committed offence as alleged, at no point of time the prosecutrix has shouted for help or though she was taken to public place, she had never tried to explain the situation to anybody. Even she has never tried to escape from Appellant though as per the case of the prosecution the Appellant and the prosecutrix were at Kalupur Railway Station four about two hours and at Himmatnagar Railway Station for about four hours. Mr. Japee has contended that he is not arguing the matter on merits, but arguing the matter only for the purpose of quantum. Mr. Japee has contended that the Appellant is the bread winner for his family. He has further contended that looking to the facts of the case as well as evidence produced on record, conviction imposed upon the Appellant is very harsh. He has also contended that looking to the circumstantial evidence and evidence produced on record, some lenient view is required to be taken in the matter.

As against this, Mr. Jani, learned Additional Public Prosecutor for the Respondent-State, has supported the judgment and order of conviction and sentence passed by the learned Second Additional Sessions Judge. He has contended that looking to the charge framed against the Appellant, order passed by the learned Second Additional Sessions Judge is absolutely just and proper. Mr. Jani has read the oral evidence of prosecutrix and contended that she was below 18 years and therefore, case of consent cannot be considered. The evidence of prosecutrix is sufficient to convict the Appellant. He has also read the documentary evidence produced on record and contended that learned Second Additional Sessions Judge has not committed any error in convicting the Appellant-accused. 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 Sessions Court. I have also perused the oral as well as documentary evidence led before the Sessions Court and also considered the submissions made by learned Counsel for the parties.

It appears from the papers produced before me that at the time of incident, the prosecutrix was aged about 16 years and 07 months. Thus, the prosecutrix is more than 16 years of age, but below 18 years. It is true that prosecutrix was taken by the Appellant and had committed offence punishable u/s 376 of the Indian Penal Code and as the prosecutrix was below 18 years, case of consent cannot be considered. At the same time, it is also true that though the prosecutrix was moved with the Appellant in public places, she never tried to explain anybody about her situation though she was having ample opportunity. I have also considered the submission of Mr. Japee that the Appellant is of 25 years of age and he is bread winner for his family. At present the Appellant is on bail. He has already undergone more than one year sentence. Therefore, looking to the facts of the case, evidence produced on record and circumstantial evidence, I am of the opinion that conviction imposed upon the Appellant is harsh. I am of the opinion that if the sentence imposed upon the Appellant be reduced, same would meet with ends of justice. Even looking to the submissions advanced by the learned Counsel for the Appellant and circumstances of the case, sentence imposed upon the Appellant is required to be reduced and modified on the ground of sympathy also.

Hence, in view of the foregoing reasons, present appeal is partly allowed. The impugned judgment and order of conviction dated 31st May, 2008 passed by the learned Second Additional Sessions Judge, Sabarkantha at Himmatnagar, in Sessions Case No. 64 of 2007 is hereby confirmed. However, the judgment and order of sentence dated 31st May, 2008 passed by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar, in Sessions Case No. 64 of 2007 is hereby reduced and modified to the extent that now the Appellant shall have to undergo rigorous imprisonment for a period of five years instead of rigorous imprisonment for a period of seven years for the offence punishable under Sections 363, 366, 376, 506(2) of the Indian Penal Code. The Appellant is on bail. His bail bonds shall stand cancelled. The Appellant is, therefore, directed to surrender himself before the Jail Authority to undergo remaining sentence, if any, within a period of three weeks from today, failing which the trial Court concerned is directed to issue non-bailable warrant against the Appellant to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.