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Judgment
Vimal K. Vyas, J
This enhancement appeal has been filed by the State under Section 377 of the Code of Criminal Procedure, 1973, against the judgment and order of conviction and sentence dated 06.07.2006 passed by the learned Additional Sessions Judge, Court No.13, Ahmedabad, in Sessions Case No.33 of 2005.
By the aforesaid judgment and order of conviction and sentence, the learned Additional Sessions Judge convicted the respondent-accused no.1 for the offences punishable under Sections 363, 366, 376, 342 and 114 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three and a half years with a fine of Rs.10,000=00, and in making default, to further undergo rigorous imprisonment for one month.
It is noteworthy that the original accused nos.2 and 3, namely, Hitesh Babu Dhande (Marathi) and Shailesh Danturav Aargade (Marathi), who were convicted for the offence of abetment and attempt to commit rape, respectively, had preferred the Criminal Appeal No.1280 of 2006, which was allowed by a Coordinate Bench of this Court (Coram: D.N.Patel, J.) vide judgment and order dated 01.09.2006 and they were acquitted of the charges levelled against them.
It is the case of the prosecution, as per the Charge Exh.1 that on 22.12.2003 at around 11:00 in the morning, the accused nos.1 and 3 had kidnapped the prosecutrix on motorcycle and thereafter, the accused no.1 had committed rape on the prosecutrix in the house of the accused no.3.
A complaint was filed by the prosecutrix (PW-5) on 23.12.2003 against the accused for the alleged offence before the Vatva Police Station, which was registered as I-CR No.590 of 2003. Thereafter, pursuant to the FIR, the investigation was carried out and after the completion of the investigation, charge-sheet came to be filed against the present respondents-accused for the offences punishable under Sections 363, 366, 376, 342 and 114 of the Indian Penal Code, which came to be registered as Sessions Case No.33 of 2005. The learned Additional Sessions Judge framed the Charge vide Exh.1 against the present respondent-accused, whereupon the respondent-accused pleaded innocent and claimed to be tried.
To bring home the charge against the respondent-accused, the prosecution had examined, in all, 13 witnesses and adduced documentary evidence in support of the case, which are as follow:
WITNESSES
NO.
NAME
EXHIBIT
1.
Prosecutrix/Complainant
21
2.
Shailesh Ranjitrav – Prosecutrix’s brother
34
3.
Shintu Yogendra Pande – Panch Witness
15
4.
Maltidevi Ranjitsinh Rajput – Prosecutrix’s mother
33
5.
Samarji Tasing Pratapsing Rana – Panchnama of the place of offence
37
6.
Omkarsing Udaysing Rajput – Panch Witness
42
7.
Jitendrakumar Ramgovind Chauhan – Panch Witness
11
8.
Shivkumarsing Ramchandrasing Sing - Panch
12
9.
Dr.Reenaben Kaushikbhai Chokshi
07
10.
Dr.Rajendrakumar Bhagirathprasad Joshi
02
11.
Dr.Chandrakant Bachubhai Patel
03
12.
Kavaji Diptaji Asoda
35
13.
Chandrajit Jawaharsing, Investigating Officer
51
DOCUMENTARY EVIDENCE
SR. NO.
DESCRIPTION OF THE DOCUMENT
EXHIBIT
1
List of documentary evidence
05
2
Injury certificate of the accused no.1
08
3
Injury certificate of the complainant-prosecutrix
10
4
Injury certificate of the complainant-prosecutrix
13
5
Panchnama of the person of the accused
6
Original Complaint
7
Xerox copy of the R.C.Book of Motorcycle
8
Outward entry of muddamal
9
Receipt of the F.S.L.
10
Forwarding Letter of the F.S.L.
11
Analysis report by F.S.L.
16
12
Serological report by F.S.L.
17
13
Report as per Section 157 of the Cr.P.C.
36
14
Panchnama of the scene of offence
38
15
Panchnama of the recovery of the sample taken during the treatment of the accused Ramesh
43
16
Panchnama of the recovery of the clothes of the prosecutrix worn at the time of the offence
46
17
Panchnama of the recovery of the sample taken during the treatment of the prosecutrix
48
The learned Additional Sessions Judge recorded the further statement of the respondent-accused under Section 313 of the Cr.P.C. with regard to the incriminating circumstances made against him in the evidence rendered by the prosecution and the respondent-accused no.1 denied it and has not led any evidence in defense. Therefore, the learned Additional Sessions Judge proceeded to convict and sentence the respondent–accused for the offences as aforesaid.
Being aggrieved and dissatisfied with the quantum of sentence awarded by the trial court, the appellant-State has preferred the present appeal for enhancement of the sentence imposed upon the respondent-accused no.1 mainly on the grounds that the sentence awarded by the trial court is highly inadequate and disproportionate to the offence committed by the respondent-accused no.1 and the trial court has committed an error in taking a lenient view while imposing a lesser sentence.
SUBMISSION ON BEHALF OF THE APPELLANT-STATE.
Mr.L.B.Dabhi, learned APP appearing for the appellant-State has submitted that even though there was no mitigating circumstances to impose less than the minimum prescribed sentence, yet the trial court has, without assigning any adequate and special reasons, imposed lesser sentence of only three and a half years. The law in this regard is well-settled that while awarding the punishment, the court should take into consideration the nature of the offence, the circumstances under which it was committed and the degree of deliberation shown by the offender. Mr.Dabhi has submitted that the measure of punishment should be proportionate to the gravity of the offence. In the facts of the present case, the respondent-accused no.1 has been held guilty for the commission of offences under Sections 363, 366, 376, 342 and 114 of the IPC, for which, the minimum sentence is of seven years with fine, however, the trial court, after considering the age, education as well as the responsibility of the accused on the family, imposed lesser sentence of three and a half years only for the alleged offences. In the facts of the present case, despite the overwhelming evidence against the respondent-accused no.1, the trial court awarded lesser sentence which, ultimately, will result into travesty of justice and spread a wrong message to the society. The trial court ought to have taken a deterrent view while imposing the sentence in such a serious offence. Learned APP Mr.Dabhi has lastly submitted that taking into consideration the aforesaid circumstances as well as the seriousness and gravamen of the offence committed by the respondent-accused no.1, the appeal is required to be allowed and the sentence awarded by the trial court may be enhanced to the maximum punishment for the offence with which the respondent-accused no.1 has been charged.
SUBMISSION ON BEHALF OF THE RESPONDENT-ACCUSED.
At the outset, learned advocate Mr.Pratik Barot appearing for the respondent-accused no.1 has submitted that admittedly the trial court has convicted the respondent-accused no.1 for the offences punishable under Section 363, 33, 376, 342 and 114 of the IPC and sentenced him to suffer rigorous imprisonment for three and a half years with a fine of Rs.10,000=00. He has submitted that trial court, after considering the peculiar facts and circumstances on record as well as considering the manner and method in which the incident had occurred and also taking into consideration the age, education and the responsibility of the accused on the family, has imposed a lesser punishment than prescribed under law, which cannot be said to be perverse or illegal since the trial court has exercised its discretion to impose the lesser sentence upon the respondent-accused. He has, therefore, urged before this Court to dismiss the appeal preferred by the State.
ANALYSIS AND FINDINGS :
Having regard to the facts and circumstances of the present case, prima facie it appears that the appellant-State has filed the present appeal for enhancement of sentence on a very limited ground. It is an admitted fact that after the judgment of conviction and order of sentence passed by the trial court, the appellant-State has preferred the present appeal being Criminal Appeal No.2276 of 2006. Admittedly, it appears from the bare perusal of the judgment of the trial court that the trial court has, after taking into consideration the age of the respondent-accused no.1 as well as considering the aspects of education and responsibility of the respondent-accused on the family, imposed a lesser sentence of three and a half years upon the respondent-accused no.1 for the offences under Sections 363, 366, 376, 342 and 114 of the IPC. The trial court, in its judgment, has assigned the specific reasons for awarding the lesser punishment.
Having gone through the entire materials on record, the following aspects have been taken into consideration :
(i) The record reveals that initially the prosecutrix (PW-5) had not supported the case of the prosecution and she had turned hostile. It appears that she was also cross-examined by the learned APP but, nothing fruitful came out. It further appears from her deposition that after the cross-examination was over, she was called in the chamber of the learned trial judge and she stated certain facts before the learned trial judge and thereafter in her deposition, she made some averments against the present respondent-accused.
(ii) It is not even the case of the prosecution that the original accused no.3, namely, Shailesh, had committed rape on her, however, after she was called in the chamber of the learned trial judge, she stated in her deposition that the original accused no.3 – Shailesh had also committed rape on her, which was considered as material improvement by the Coordinate Bench in the judgment and order dated 01.09.2006 passed in Criminal Appeal No.1280 of 2006. The Coordinate Bench also observed in the aforesaid judgment that the prosecutrix had applied for bail of the respondent-accused no.1 and there are suggestions as to love affairs between them.
(iii) The record reveals that the trial court, after considering the peculiar facts and circumstances of the case as well as considering the nature and the manner in which the incident had occurred, arrived at the conclusion to impose a lesser sentence upon the respondent-accused no.1.
The punishment for the offence under Section 376 of the Indian Penal Code before the amendment was imprisonment of either description for a term which shall not be less than seven years. Section 376 reads thus :
“376. Punishment for rape.-- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description of a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both;
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.”
(emphasis supplied
It reveals from the aforesaid provisions that though minimum sentence has been prescribed, yet the court is empowered to impose lesser sentence than the minimum prescribed if there are adequate reasons to do so.
On the overall appreciation and reanalysis of the entire evidence, prima facie, it appears that the trial court, after having considered the age, education and the responsibility of the accused as well as taking into consideration the nature of the incident as well as the circumstances and the manner in which it was occurred, has imposed the lesser sentence upon the respondent-accused no.1 to suffer rigorous imprisonment for three and a half years with fine, which cannot be said to be perverse or illegal since the trial court has exercised its discretion to impose the minimum sentence. Therefore, this Court does not find any infirmity in the order passed by the trial court, since, while exercising the judicial discretion, the trial court has recorded sufficient and adequate reasons. This Court is satisfied with the reasoning assigned by the trial court on the aspect of sentence and, therefore, no interference is required to be made with the discretion exercised by the trial court. It is settled position of law that the question of sentence is a matter of discretion and if sufficient reasons are recorded by the trial court, then the High Court should not interfere with the decision of the trial court on the issue of sentence.
This Court deems it fit to refer to the principles, as laid down by the Supreme Court in the case of Bed Raj vs. State of U.P., reported in AIR 1955 SC 778, governing the exercise of power by the High Court while enhancing the sentence imposed by the trial court, which reads thus :
“A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; see for example the observations in -'Dalip Singh v/s. State of Punjab', and 'Nar Sigh v/s. State of Uttar Pradesh'.
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate. In our opinion, these principles have not been observed. It is impossible to hold in the circumstances described that the Sessions Judge did not impose a substantial sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence manifestly inadequate.
In the circumstances, bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence) should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored.”
Considering the peculiar facts and circumstances of the present case, this Court is of the considered opinion that the findings recorded by the trial court do not suffer from any perversity or illegality. The findings recorded by the trial court are absolutely just and proper, and in recording the same, no illegality or infirmity has been committed by the trial court. Therefore, this Court does not find any ground warranting interference with the order of sentence passed by the trial court.
On the facts and in the circumstances of the case, this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of sentence passed by the trial court, therefore, no interference is warranted. The appeal, therefore, fails and the same is hereby dismissed. Records and proceedings be sent back to the concerned court.