Sureshbhai Kanubhai Damor vs State of Gujarat

Z.K. Saiyed, J.—The Appellant - original accused has filed this Appeal u/s 374 of Code of Criminal Procedure against the judgment and order of conviction and sentence dated 07.07.2005 passed by the learned Special Judge & Presiding Officer, Fast Track Court No. 2, Dahod, in Special Case No. 18 of 2004, whereby the learned Special Judge has held the Appellant - accused guilty for the offence punishable u/s 363 read with Section 114 of I.P. Code and sentenced him to suffer Rigorous Imprisonment for 5 years with fine of Rs. 1,000/- i/d to further undergo SI for three months.

The brief facts of the case of prosecution are that on 15.7.2004 at 20.00 hours the Appellant (original accused) and the accused No. 1 have kidnapped the victim and abused her and by threatening her they took the victim at Vadodara in a rickshaw of accused No. 3 where the accused Nos. 1 & 3 have done the intercourse with the victim without her will and consent. It is also alleged that all the accused have insulted the victim about her caste. Thereafter on 19.7.2004 the complaint was lodged against the Appellant (original accused No. 2) and two other accused with Dahod Rural Police station. Offence under Sections 363, 366, 376, 504, 506(2), 212, 114 of I.P. Code and u/s 3(1), 11, 12 of the Prevention of Atrocities (Scheduled Caste & Scheduled Tribes) Act was registered against the accused....

Necessary investigation was carried out by the Police. The statements of the complainant and other witnesses were recorded. Thereafter, after completion of investigation the charge-sheet against the accused came to be submitted before the Court. As the offences were triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The learned Special Judge framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

To prove the case against the accused, the prosecution has examined 25 witnesses and also relied upon documentary evidence and at the end of trial, after recording the statement of the accused u/s 313 Code of Criminal Procedure, and after hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge held the Appellant (original accused No. 2) and original accused Nos. 1 & 2 guilty of the offence. The trial Court held the present Appellant guilty for the offence u/s 363 read with Section 114 of I.P. Code and awarded sentence as narrated herein above.

Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the Appellant - accused has preferred this Appeal.

Heard learned advocate Mr. Sunil Joshi, appearing on behalf of the Appellant and learned APP Mr. H.L. Jani on behalf of the respondent - State. I have gone through the judgment and order passed by the trial Court. I have also considered the documents produced on the record of the case.

Learned Advocate, appearing on behalf of the Appellant - accused, has contended that the Appellant - accused has not committed any offence as alleged in the charge. He has contended that looking to the oral evidence of the prosecutrix as well as medical expert and other witnesses, the Appellant has not committed the rape on the prosecutrix or insulted her about her caste and the learned Judge has also not held the Appellant - guilty for the offence of rape. He has contended that the Appellant is a poor and illiterate man and he is a bread-winner of the family. Looking to the facts of the case the judgment and order of sentence awarded by the learned Judge is very harsh. He has contended that looking to the Jail Report produced by the learned A.P.P. the Appellant has already undergone the sentence of 1 year, 1 month and 5 days and at present he is on bail. He, therefore, contended that he is not arguing the Appeal on merit, but, the sentence awarded by the learned Judge is very harsh and looking to the facts of the case and the role of the Appellant some leniency may shown.

Learned APP has supported the judgment and order passed by the learned Special Judge and contended that looking to the seriousness of offence no interference of this Court is called for. He has contended that looking to the facts and evidence on records the learned Judge has rightly held the accused guilty for the offence alleged against him and, therefore, no interference is called for.

I have gone through the judgment and order passed by the learned Additional Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the parties.

I have gone through the record and proceedings of the case. I have also gone through the evidence of the prosecutrix and other material evidence. I have also considered the judgment of the trial Court. From the evidence on record, it clearly appears that the learned Judge has not committed any error in holding the Appellant - accused guilty for the offence u/s 363 of I.P. Code. However, looking to the role and conduct of the present Appellant, in my opinion, the sentence awarded by the learned Judge is very harsh. The learned Advocate appearing on behalf of the Appellant has also not argued the matter on merit and contended that the Appellant - accused is an illiterate and poor person and he is the bread-winner of the family and, therefore, some leniency may be shown towards the Appellant. From the Jail record produced by the learned APP it appears that the Appellant - accused has already undergone the sentence of 1 year, 1 month and 5 days and at present he is on bail. Therefore, if the sentence awarded by the learned Judge is reduced to an extent of 2-1/5 years the same would meet the ends of justice.

In view of above, the Appeal is partly allowed. The judgment and order of conviction dated 07.07.2005 passed by learned Special Judge & Presiding Officer, 2nd Fast Track Court, Dahod, in Special Case No. 18 of 2004 convicting the Appellant - accused for the offence u/s 363 read with Section 114 of I.P. Code is hereby confirmed. However, the sentence awarded by the learned Special Judge, vide impugned judgment is reduced to an extent of 2-1/2 years, instead of 5 years as awarded by the learned Special Judge. The Appellant - accused is at present on bail and as per the Jail Record produced by the learned APP, the Appellant - accused has undergone the sentence of 1 year, 1 month and 5 days and, therefore, the Appellant - accused is directed to surrender himself before the Jail Authority within a period of 4 (four) weeks from the receipt of this order to undergo his remaining sentence, failing which the trial Court is directed to issue Non-bailable warrant against the accused. The address of the accused, as provided by the learned Advocate for the Appellant - accused is - "Suresh Kanubhai Damor, c/o Jagdish Kanubhai Damor, Nani Ragdal, Nr. Muvaliya Railway Crossing, Dahod". Rest of the judgment and order passed by the lerarned Special Judge is confirmed. Bail Bonds shall stand cancelled. R & P to be sent back to the trial Court immediately.