Sanjaykumar Karamsibhai Patel 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 6.10.2004 passed by the learned Addl. Sessions Judge, Fast Track Court No. 1, Bhavnagar, in Sessions Case No. 225/2003, whereby, the learned Judge has convicted the appellant u/s 376 IPC and sentenced to undergo imprisonment of 7 years R/I and to pay a fine of Rs. 10,000/-, in default, to undergo further S/I for one year, which is impugned in this appeal.

The brief facts of the prosecution case is as under:

That on 5.6.2003, when the complainant was at his working place, his son namely Mahesh came there to call him. The complainant went to his house, at that time, his wife told him that their daughter Rinaben went to answer the nature''s call, did not came back and, therefore, they went to their father''s house,where, complainant''s mother informed that Rinaben had come to their house with one bag and she told them that she is going to her friend''s house. Thereafter, they enquired about her at various places of their relatives. Thereafter, the complainant came to know that Sanjay the present appellant was having love affair with her, he might have taken her by giving false promise of marriage.

Therefore a complaint came to be filed by the Vartej Police Station. Thereafter, the panchnama of the clothes put on by the victim was prepared in the presence of panch witness and statements of Rinaben and other witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned Chief Judicial Magistrate, Bhavnagar. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was given number as Sessions Case No. 225/2003.

Thereafter, the charge was framed at Ex. 12 against the appellant. The appellant - accused has pleaded not guilty and claimed to be tried.

In order to bring the home the charge levelled against the appellant-accused, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court.

Thereafter, after examining the witnesses, further statement of the appellant-accused u/s 313 of CrPC 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 Judge vide impugned judgment and order dated 6.10.2004 held the appellant - accused guilty to the charge levelled against him u/s 376 of IPC and convicted and sentenced the appellant accused, as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Ahmedabad City, the present appellant has preferred this appeal.

Heard Mr. S.L. Vaishya learned advocate for the appellant and Mr. H.H. Parikh learned APP for the respondent-State.

Mr. Vaishya learned advocate for the appellant has fairly admitted that he is only arguing the matter on the point of quantum of punishment and not arguing the matter on merits. He has also contended that looking to the age of the present appellant, a very harsh conviction has been imposed upon him by the learned Judge, which is required to be reduced. In that view of the matter, the period of sentence is very harsh and looking to the age of the appellant, he has undergone the sentence of four years and six months. He has further contended that the appellant is a very poor person and he is the only bread earner member in the family, and therefore, the sentence imposed upon the present appellant by the learned Judge may be reduced to the sentence as already undergone by the appellant-accused. He has further contended that the appellant is very poor person and is unable to pay Rs. 10,000/-, the amount of fine, and prayed to quash and set aside the order of payment of fine.

On the otherside, learned APP Mr. H.H. Parikh has read the impugned judgment and order of conviction and sentence passed by the learned Judge and contended that the impugned judgment and order is required to be confirmed.

I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. Looking to the allegations levelled against the present appellant, they are very serious in nature, but when sufficient period of sentence is already undergone by the present appellant, then, I am of the opinion that looking to the poverty of the appellant, when he is unable to pay the amount of fine, this is a fit case to consider the submissions of the learned advocate for the appellants. In that view of the matter, when the learned advocate Mr. Vaishya appearing for the appellant is not arguing the matter on merits but arguing the matter on the point of quantum of punishment, I am of the opinion that this is a fit case to reduce the sentence as well as to quash and set aside the order of fine.

In the result, this appeal is partly allowed. The impugned judgment and order of conviction dated 6.10.2004 passed in Sessions Case No. 225/2003 by the learned Addl. Sessions Judge, Fast Track Court No. 1, Bhavnagar convicting the appellant-accused u/s 376 of IPC is hereby confirmed. However, the order of sentence sentencing the appellant-accused to undergo R/I for 7 years for the aforesaid offence, is hereby modified to the extent that instead the appellant-accused is hereby sentenced to undergo the period of sentence already undergone. So far as the order of payment of fine is concerned, the same is hereby quashed and set aside. The fine if paid, be refunded to the appellant-accused. The appellant is ordered to be set at liberty forthwith, if he is not required in any other case.