The State of Gujarat vs Arvindbhai Gangubhai Rathod

K.S. Jhaveri, J.—1. Present appeals are directed against the judgment and order dated 04/11/2004, passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case No. 58 of 2004, whereby, original accused came to be convicted for the offence punishable under Section 376 of the Indian Penal Code, 1860 (for brevity, ''the IPC'') and sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 500/- and in default of payment of fine, to undergo further simple imprisonment for three months. Accordingly, Criminal Appeal No. 1057 of 2005 has been filed by the State for enhancement of sentence, whereas, Criminal Appeal No. 281 of 2005 has been filed by the original accused against conviction.

Brief facts of the prosecution case are that prior to three months of 17/03/2004, the accused, knowingfully well about the fact of victim being mentally retarded and of unsound mind, took the victim with him and further, taking disadvantage of her such condition and the loneliness, forcefully raped her twice and thereby, committed the alleged offence against him, for which a complaint came to be lodged.

2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court at Jamnagar.

2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence.

2.3 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:

2.4 At the end of the trial, Further Statement of the accused under Section 313 of Code was recorded in which, he pleaded not guilty and false implication. Thus, after recording above-referred Further Statement and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused, as aforesaid, by impugned judgment and order.

2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the State as well as the accused have preferred the present appeals for enhancement of sentence and against conviction, respectively.

We have heard Ms. C.M. Shah, learned Additional Public Prosecutor for the State and Mr. L.R. Pathan, learned advocate for the accused.

3.1 Mr. Pathan, learned advocate for the accused, submitted that the trial Court has committed a grave error in convicting the accused. It was contended by Mr. Pathan that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led before it and looking to the provisions of law itself it is established that the prosecution has failed to prove the whole ingredients of the offence against the accused. He also took this Court through the oral as well as the entire documentary evidence, more particularly, the evidence of PW-3 Bhikhalal Muljibhai, exh. 14, PW-5, the victim, exh. 20, PW-6, Shantaben Bhikhalal, the mother of the victim, exh. 21 and also the evidence of PW-7, Dr. Nileshbhai Shambhubhai, exh. 22, PW-11 Dr. Anilkumar Madhukant Maheta, exh. 62 and PW-1 Dr. Himanshu Shantilal Peshavariya, exh. 10, the doctors who had examined the victim and also PW-4 Dr. Nilesh Keshavji Galaiya, exh. 16, the doctor who had examined the accused. Taking into account that there are serious contradictions in the versions of the prosecution witnesses and the fact that there is nothing on record to establish that the accused was involved in the crime and the fact that no name of the accused was reflected in the FIR at first point of time and it had firstly come out from the statement of the victim while being examined by the doctor after almost three months of the occurrence of the alleged offence, and also considering the fact that the victim was of the age of daughter of the accused, the learned advocate for the accused contended that the trial Court has misread the evidence on record. Moreover, in view of the Further Statement of the accused under Section 313 of the Code, this being mala fide prosecution in view of the civil dispute pending between the parties, the trial Court has committed a serious error in not considering the same and convicted the accused and requested that he may be given benefit of doubt or may be acquitted in view of lack of evidence and/or material contradictions in the same.

Whereas, Ms. Shah, learned Additional Public Prosecutor, for the State while supporting the judgment and order so far as conviction part to the accused is concerned, contended that when the offence is already proved by the prosecution against the accused beyond reasonable doubt, the trial Court has committed an error in imposing lesser punishment to the accused. Moreover, she submitted that looking to the provisions of the extant law itself, it is clear that minimum punishment provided for the offence punishable under Section 376 of the IPC is imprisonment of seven years and accordingly, the trial Court has committed error in awarding lesser punishment for such a grave offence, without assigning any cogent and sufficient reasons, where the victim was a mentally retarded and of unsound mind. Moreover, she contended that from the evidence of the victim, her mother and her father and also from the medical evidence, as referred herein above, the guilt of the accused has clearly been established and accordingly, in her submission, when the offence is proved beyond reasonable doubt and conviction is imposed, this Court may interfere in appeal and imposed adequate punishment. In support of her submission, she has relied upon decisions of the Hon''ble Apex Court, firstly in the case Shivaji @ Dadya Shankar Allhat Vs. State of Maharashtra, reported in , (2008) 15 SCC 269 and in Vijay @ Chinee Vs. State of Madhya Pradesh, reported in , (2010) 8 SCC 191. Last but not least, Ms. Shah, learned Additional Public Prosecutor, submitted that the State has filed the appeal for enhancement of sentence and the offence is already proved against accused beyond reasonable doubt and when, the trial Court has dealt with each and every aspect of the matter minutely, this Court may not interfere so far as conviction is concerned. However, so far as sentence imposed by the trial Court upon the accused is concerned, the minimum sentence provided for the offence punishable under Section 376 of the IPC is seven years and accordingly, the learned trial Judge has erred in imposing lesser punishment and this Court may accordingly allow the appeal and sentence may suitably be enhanced.

We have examined the matter carefully and gone through the evidence on record. We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon''ble Apex Court. It is true that at first point of time, in the FIR, the name of accused was not reflected and it is only after the victim disclosed before the doctor who had examined her and thereafter, in her statement it had been known that the accused herein, had by giving false promise and temptation to the victim, who was of unsound mind, which has been reflected from the certificate at exh. 60 issued by the doctor, duped her and committed rape upon her forcibly and also taking into consideration the deposition of the prosecution witnesses and the medical evidence, in particular, and the discussion made by the learned trial Judge in the impugned judgment and order in detail, we find that the trial Court, while considering the evidence on record, has very elaborately discussed the evidence adduced before it and thereafter, has come to such a conclusion. Further, the learned advocate for the accused is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order and we are in complete agreement with the reasonings given and the findings arrived at by the trial Court and therefore, we are not inclined to disturb the same.

5.1 Now, so far as aspect of sentence imposed by the trial Court of three years'' rigorous imprisonment is concerned, looking to the provision of the extant law, in our opinion, the same is inadequate and is required to be enhanced, as minimum sentence prescribed for the offence under the law, is seven years and to that extent, the impugned judgment and order of the trial Court is required to be modified and the sentence to the accused is required to be enhanced accordingly.

5.2 Moreover, recently, it has been held by the Hon''ble Apex Court in the decision in the case of Raj Bala Vs. State of Haryana and Others etc. etc. in Criminal Appeal Nos. 1049 to 1050 of 2015, decided on 18/08/2015, in para 1 and 2 as under:

"1. In Gopal Singh v. State of Uttarakhand, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:--

"Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment."

[Emphasis added]

Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that:--

"7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be--as it should be--a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.

Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N."

[Emphasis supplied]

And again:--

"The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society''s cry for justice against the criminal"."

In view of the aforesaid discussion, Criminal Appeal No. 1057 of 2005, filed by the State for enhancement of sentence, succeeds and the impugned judgment and order dated 04/11/2004, passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case No. 58 of 2004, is modified to the aforesaid extent and it is held that, for the offence punishable under Section 376 of the IPC, the accused shall have to undergo seven years'' rigorous imprisonment, instead of three years, as has been awarded by the trial Court. The accused is reported to have been on bail and accordingly, he is directed to surrender to custody within 12 (twelve) weeks from today to undergo the remaining sentence and his bail bonds shall stand cancelled, failing which, the concerned investigating agency shall be at liberty to take appropriate actions, in accordance with law. He may be given set off of the period he has already undergone. The rest of the judgment and order shall remain unaltered. The Criminal Appeal No. 281 of 2005, filed by the accused against conviction, shall accordingly stand dismissed. Registry to return the R & P to the trial Court forthwith.