State of Gujarat vs Alpesh

K.S. Jhaveri, J.—By way of this appeal under Section 377 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of the trial Court dated 11.6.2009 in Sessions Case No. 110 of 2008 whereby the trial Court convicted the original accused under Sections 376, 366 and 363 of the Indian Penal Code and sentenced him to suffer imprisonment to the period which he had already undergone and to pay fine of Rs. 50/-, in default, to undergo simple imprisonment for five days for the offence punishable under Section 376 of the Indian Penal Code. For the offence punishable under Section 366 of the Indian Penal Code, the trial Court sentenced the accused to suffer imprisonment to the period which he had already undergone and to pay fine of Rs. 100/-, in default, to further undergo simple imprisonment for a period of five days.

The prosecution case is that on 10th May, 2008, at about 8.00 p.m. the accused abducted the minor victim from the custody of house of lawful parents and committed rape on her without her consent. A complaint in that regard was lodged with Deesa City Police Station. On the basis of the complaint, investigation was carried out. After completion of investigation, on the basis of material collected against the respondent-accused, charge sheet against the accused for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code was filed in the Court of learned Judicial Magistrate First Class, Deesa. As the case against the accused was triable exclusively by the Sessions Court, it was committed to the Sessions Court under Section 209 of the Code of Criminal Procedure.

2.1. The trial Court framed charge against the accused. It was read and explained to him. He pleaded not guilty to the charge and claimed to be tried. Therefore, prosecution led evidence against the accused.

2.2. To prove the case against the accused, the prosecution has examined the following witnesses:

Popatji Sardarji Thakore, PW 1, at Exh. 6

Prosecutrix, PW 2, at Exh. 10

Akhuben Popatji Sardarji Thakore, PW 3, at Exh. 11

Dalpatji Ramjiji Thakore, PW 4, at Exh. 12

Ranjanben Parshotambhai Khatri, PW 5, at Exh. 14

Rupabhai Bhikhibhai, PW 6, at Exh. 19

Gupta Sanjubhai Maheshbhai, PW 7, at Exh. 23

Dr. Alkaben Umeshbhai Zhaveri, PW 8, at Exh. 25

Ganatra Jayshreeben Vithaldas, PW 9, at Exh. 30

Savlaram Jesaramji Mali, PW 10, at Exh. 33

Dohsijibhai Savjibhai Ansari, PW 11, at Exh. 35

Rajendrakumar Girjashankar Pandya, PW 12, at Exh. 45

2.3. The prosecution has relied on the following documentary evidences:

Medical Certificate at Exh. 26

Panchnama of scene of offence at Exh. 13

F.S.L. Report at Exh. 38

Serological report at Exh. 39

Complaint at Exh. 7

2.4. At the conclusion of trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which he has denied the charge.

2.5. The trial Court, after taking into consideration the material produced on record and after considering the arguments advanced by learned counsel for the parties, convicted the accused for the offence punishable under Sections 366 and 376 of the Indian Penal Code and sentenced him to suffer imprisonment for the period which he had already undergone during the period of trial. The appellant State has therefore filed this appeal for enhancement of the sentence.

Learned APP Ms. Thakore for the appellant State has contended that the trial Court has committed error in imposing lesser punishment when minimum sentence of seven years is provided by the statute, without assigning any reasons. She has further contended that the trial Court has failed to consider that the prosecutrix was below 16 years of age at the time of incident. She has further contended that trial Court was wrong in observing that the parties have settled and both prosecutrix as well as the accused have got married and therefore by taking a lenient view, lesser punishment is imposed. The trial Court has committed error in not considering the fact that the offence under Sections 366 and 376 of the Indian Penal Code is not compoundable. Even the prosecutrix was minor and the marriage between the prosecutrix and the accused was not tenable under law. In that view of the matter, the judgment and order of the trial Court is required to be quashed and set aside and the sentence of the original accused may be enhanced by allowing the appeal.

Learned counsel for the respondent-accused has supported the judgment and order of the trial Court and contended that the trial Court after considering entire material produced on record as well as arguments advanced by learned advocates for both the sides, convicted and sentenced the accused which is just and proper and no interference is warranted with the same. In that view of the matter, the appeal is required to be dismissed.

Pursuant to the order passed by this Court, on 28.9.2014 statements of accused as well as the survivor are recorded. Statement of Popatji Thakor, father of the survivor, was also recorded. The said statements are produced on record. It is stated in their statements that both the accused and the survivor are staying together with their children. At present, they all are living happily.

We have heard learned counsel for both the sides. We have carefully gone through the judgment and order of the trial Court and perused the evidence on record. The incident is of the year 2008 when the survivor was minor. The accused had taken custody of the minor girl from her lawful guardian and committed rape on her. Thus, the accused has committed offence punishable under Section 376 of the Indian Penal Code. The trial Court has, therefore, rightly convicted the accused under Section 366 and 376 of the Indian Penal Code. However, while awarding sentence, the trial Court has taken into consideration the fact that the accused and the prosecutrix have got married, they are having children and leading happy life. Thus, the trial Court, by giving special reasons, has imposed lesser punishment on the accused. In that view of the matter, in light of special reasons recorded by the trial Court while imposing lesser punishment, we are of the opinion that no fruitful purpose would be served by enhancing the sentence. On the contrary, enhancing sentence would be detrimental to both the accused and the survivor as well as their children. We are, therefore, in complete agreement with the view taken by the trial Court. The appeal is devoid of any merit and the same is dismissed accordingly.