State of Gujarat vs Vasantbhai Talshibhai Vaghari

K.S. Jhaveri, J.—The present appeal is preferred by the State for enhancement of sentence against the judgement and order dated 21.08.1995 passed by the Sessions Judge, Bhavnagar in Sessions Case No. 73 of 1995, whereby the accused has been convicted of the charges leveled against him under Sections 363, 366 & 376 of Indian Penal Code.

1.1 The original accused was ordered to undergo rigorous imprisonment for four years & fine of Rs. 2000/- in default to undergo simple imprisonment for six months for offence u/s 376 of Indian Penal Code. The original accused was also ordered to undergo rigorous imprisonment for two years & fine of Rs. 1000/- in default to undergo simple imprisonment for six months for offence u/s 366 of Indian Penal Code. Further he was also ordered to undergo rigorous imprisonment for six months and fine of Rs. 500/- in default to undergo simple imprisonment for 15 days. All the sentences were to run concurrently.

It is the case of the prosecution that the accused was residing with his family in the farm adjoining the farm of the complainant. On 23.05.1994, the prosecutrix had gone to the market for purchasing and she did not return that day. The complainant and her husband looked for her but could not find her. The accused was also not available at his house and was not found. So the complainant inferred that he had abducted her daughter.

2.1 Therefore the offence was registered against the accused with Umrala Police Station. It is the case of the prosecution that the accused had taken away the prosecutrix to various places and raped her. Thereafter, it is when the paternal aunt of the victim prosecutrix saw her that she informed the victim''s parents. The parents came to the place where the victim was put up and they caught hold of the accused. The police was informed and the accused was arrested. After his arrest and necessary investigation, charge-sheet was submitted against the accused. Ultimately, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.

2.2 The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses as oral evidences:

Lavingaben Ex. 14

Gitaben Dudhabhai Ex. 18

Medical Officer Ex. 19

Bhagwatsinh Vaghela Ex. 27

Laljibhai Kanan Ex. 32

2.3 The prosecution also exhibited the following documents as documentary evidences:

Panchnama of local area Ex. 10

Arrest panchnama Ex. 11

Panchnama of hair, semen of accused Ex. 12

Panchnama of body condition of victim Ex. 13

Complaint Ex. 15

Panchnama of samples collected Ex. 16

Medical certificates Ex. 20

Medical certificates Ex. 21

Medical case papers of accused Ex. 24

Medical case papers of victim Ex. 25

Warrant from Nasik Ex. 28

Letter to PSI, Sinnar Ex. 29

Letter of handing over accused by Nasik Jail Ex. 30

Production Report Ex. 31

Fowarding letter of FSL Ex. 33

FSL Receipt Ex. 34

Forwarding letter to FSL Ex. 35

FSL Report Ex. 36

Serological Report Ex. 37

Application regarding non-registration of date of birth of victim Ex. 38

Photographs Exs. 40-41

2.4 At the end of trial, after recording the statement of the accused, and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge passed the judgement and order dated 21.08.1995 as stated hereinabove.

2.5 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the State has preferred the present appeal.

Mr. R.C. Kodekar, learned APP has submitted that the age of the girl on the incident was below 16 and therefore the trial court ought to have taken serious view of the matter and ought to have imposed maximum sentence upon the accused. He has submitted that considering the age of the victim and the heinous crime committed by the accused, the sentence of five years is absolutely inadequate and that the trial court ought to have awarded maximum sentence prescribed under the Act.

3.1 He has further submitted that looking to fact that the prosecution has successfully proved the offences against the accused as observed by the trial court, the court ought to have awarded maximum sentence more particularly when the age of the girl was only 13 years on the date of incident. The sentence awarded to the accused u/s 376 of Indian Penal Code ought to have been atleast seven years instead of four years. The victim who was of such a tender age was subjected to such a indecent act by the accused which is proved beyond doubt and therefore considering the provisions of law this court must interfere in the sentence and enhance the same so as to set an example to the society as well.

Mr. Adil Mehta, learned advocate appearing as Amicus Curie pursuant to the order of this court has supported the order of conviction and sentence and submitted that the punishment is adequate and does not call for any enhancement. He has submitted that even if the case of the prosecution is believed, there is no cogent evidence on record regarding the proof of age of the victim. He has drawn the attention of this court to the medical papers of the victim and submitted that considering the fact that no birth certificate or school leaving certificate was available to ascertain the actual age of the victim, the medical papers of the victim should be relied upon which mentions the victim to be over 16 years of age.

4.1 Mr. Mehta has submitted that even otherwise almost 17 years have passed after the said incident and this court may not disturb the situation which is prevailing for the last so many years. He has submitted that therefore court may take a lenient view of the matter and considering the aspect of age of the accused not being proved by the prosecution beyond reasonable doubt and the considerable passage of time as also the fact that the accused has already undergone the sentence, this court may not interfere in the present appeal.

We have gone through the judgement and order passed by the trial court. We have also perused the oral as well as documentary evidence perused by the trial court and also considered the submissions made by learned Advocates for both the sides.

The fact that the prosecutrix was raped by the accused is an admitted position and the accused does not dispute the same. In that view of the matter, this court has to consider the gravity of the offence and the fact whether the sentence imposed upon by the trial court is in consonance with the offence charged.

6.1 As a result of hearing and perusal of records, it is borne out that there is no documentary evidence supporting the claim of the prosecution that the age of the victim was around 13 years on the date of incident. There is no birth certificate or school leaving certificate which can undoubtedly be relied upon by this court. The only evidence leading us to the age of the victim is the medical case paper of the victim. The medical officer who had examined the victim has stated that the approximate age of the victim could be around 15 years. He has stated that there were no injury marks on the overall body of the victim as also the private parts of the victim. No injury mark was found in and around the vulva as well which could lead us to the fact that this could be a case of consent.

Moreover, the incident is of the year 1994. It appears that the accused has already undergone the sentence imposed upon him. Therefore considering the overall facts and circumstances of the case, more particularly, the fact that the prosecution has failed to prove the age of the victim beyond reasonable doubt by way of any documentary evidence, proceeding on the basis of the age of the girl being around 15 years, this court is not inclined to enhance the sentence imposed upon the accused after a period of almost 17 years.

In the premises aforesaid, this Appeal is hereby dismissed. The judgement and order dated 21.08.1995 passed by the Sessions Judge, Bhavnagar in Sessions Case No. 73 of 1995 is confirmed. R & P, if any, to be sent back forthwith. Direct service is permitted.