Vijay Motibhai Dalpati Rathod vs State of Gujarat

J.C. Upadhyaya, J.—The challenge in this appeal is to the judgment and order dated 29/11/2006 rendered by the Ld. Addl. Sessions Judge and Presiding Officer, F.T.C. No. 2, City Sessions Court, Ahmedabad [for short ''the trial Court''] in Sessions Case No. 84/2006, whereby the Appellant herein, who was original accused in the aforesaid sessions case, came to be convicted for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code [for short ''IPC''] and he was sentenced to undergo rigorous imprisonment [RI] for 3 years and fine of Rs. 1,000/- and in default of payment of fine, RI for 3 months for the offence punishable u/s 363 of the IPC, RI for 3 years and fine of Rs. 1,000/- and in default of payment of fine, RI for 3 months for the offence punishable u/s 366 of the IPC and RI for 10 years and fine of Rs. 3,000/- and in default of payment of fine, RI for 6 months for the offence punishable u/s 376 of the IPC. The substantive sentence of imprisonment was ordered to run concurrently and the Appellant accused was given benefit of set off. The Appellant, who is in jail since last about 7 years and 2 months applied through jail for temporary bail for 30 days on the ground of performing after-death ceremony of his grand father.

Ld. Advocate Mr. A.C. Choksi representing the Appellant submitted that the conviction order passed by the trial Court is not to be challenged, but only the Appellant desires to pray for mercy so far as the sentence is concerned. Upon such submission being made, with the consent of Ld. APP Ms. Shah representing the Respondent - State, the appeal was taken up for final disposal.

The prosecution case, in nut-shell, is that both, the prosecutrix as well as the Appellant were residing in the area called Fatepura in the city of Ahmedabad and they were knowing each other. It is alleged that on 7/5/2004 the accused kidnapped the prosecutrix and they both went to different places and it is alleged that the prosecutrix was raped by the accused. The incident was reported by Manubhai Parmar, the father of the prosecutrix, to Ellisbridge Police Station. His FIR was registered and investigation was commenced. During the course of investigation, the Investigating Officer [IO] recorded statements of material witnesses. On 11/5/2004 both, the prosecutrix and the accused surrendered themselves to the police. The prosecutrix was sent to hospital for medical examination. After collecting required material for the purpose of lodgement of the charge-sheet, charge-sheet came to be filed in the Court of the Ld. Metropolitan Magistrate. Since the offence is exclusively triable by the Court of Sessions, the Ld. Magistrate committed the case to the City Sessions Court, Ahmedabad for trial.

The trial Court framed charge against accused at exh. 3 for the offences punishable under Sections 363, 366 and 376 of the IPC, to which the accused did not plead guilty and claimed to be tried. Thereupon, the prosecution examined in-all 9 witnesses including the prosecutrix and produced 13 documents detailed in para. 3 of the impugned judgment. The accused produced at exhs. 35 and 36 two letters written by the prosecutrix addressed to him. After the prosecution concluded its evidence, the trial Court recorded further statement of the accused. The accused in his further statement denied all the allegations levelled against him by the prosecution and submitted that both, himself and the prosecutrix were in love and they used to write love letters to each other. After appreciating and evaluating the evidence on record and the submissions advanced on behalf of both the sides, the trial Court came to the conclusion that at the time of the incident, the prosecutrix was aged about 15 years, 1 month and 15 days and, therefore, not only she was minor but she was under 16 years of age. The trial Court accepted the case of the prosecution regarding rape having been committed by the accused on the prosecutrix and further came to the conclusion that both, the prosecutrix and the accused were knowing each other and they had fallen in love. The trial Court, therefore, came to the conclusion that it was a case of love affairs, but since the prosecutrix was minor and was under 16 years of age, her consent was irrelevant and, therefore, recorded the conviction of the accused and awarded the sentence as hereinbefore referred to in this judgment.

At the outset, Mr. Choksi, learned advocate for the Appellant submitted that so far as the age of the prosecutrix at the time of the incident and her date of birth being 21/2/1989 is concerned, there cannot be any dispute. Mr. Choksi submitted that considering the evidence of the prosecutrix exh. 7 together with the medical evidence on record, it is very difficult for the Appellant even to assail the judgment of the Sessions Court whereby the Sessions Court came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt. Mr. Choksi, therefore, submitted that so far as the instant appeal is concerned, the Appellant does not challenge the conviction recorded by the Sessions Court.

5.1. However, Mr. Choksi, learned advocate for the Appellant submitted that at the time of the incident, even the accused was aged about 25 years and was bachelor. As admitted by the prosecutrix in her evidence, this is a case of love affair and they used to write love letters to each other and letters written by the prosecutrix addressed to the Appellant produced at exhs. 35 and 36 supports the defence of the accused. It is submitted that there cannot be any dispute that at the time of the incident, the prosecutrix was under 16 years of age and, therefore, her consent was irrelevant. Mr. Choksi submitted that as a matter of fact, therefore, technically the Appellant can be said to be guilty of the offences charged against him. Mr. Choksi submitted that the Appellant - accused is undergoing sentence and is in jail since last about 7 years and 2 months. It is, therefore, submitted that considering the facts and circumstances of the case, the period undergone by the Appellant - accused in the jail can be considered as sufficient sentence and considering his poor financial condition, even the fine may be reduced.

Ms. CM Shah, Ld. APP for the Respondent - State vehemently opposed this appeal and submitted that considering the nature of crime, the Appellant does not deserve any mercy and the sentence awarded by the trial Court is not required to be disturbed and the appeal may be dismissed.

We have examined the record and proceedings in the context of the submissions made by the rival side.

As referred above, the instant appeal is now pressed only on the limited ground of sentence. The evidence adduced by the prosecution and more particularly of the prosecutrix exh. 7 is cogent, clear and convincing. Even the age of the prosecutrix on the day of the incident being 15 years, 1 month and 15 days has been duly established as the date of birth of the prosecutrix is 21/2/1989 and the incident occurred on 7/5/2004. The medical evidence adduced by the prosecution is re-considered and re-appreciated and it corroborates the evidence of the prosecutrix . Under such circumstances, we are satisfied that the trial Court has rightly recorded conviction of the Appellant for the offences charged against him and the same is, therefore, rightly not assailed by the Appellant.

Bare perusal of the evidence adduced by the prosecution and more particularly considering the evidence of the prosecutrix, it clearly transpires that both, the prosecutrix and the accused were not unknown to each other, they were residing in the neighbourhood and they inter-se exchanged love letters. Considering the letters exhs. 35 and 36, this fact is apparent. Under such circumstances, it can safely be said that the element of criminality is lacking in the act done by the Appellant. Admittedly, the prosecutrix was under the age of 16 years and, therefore, technically speaking her consent or otherwise was immaterial. However, for the offence of rape punishable u/s 376 of the IPC, the trial Court imposed sentence of RI for 10 years and fine of Rs. 3,000/- on the Appellant, observing that imprisonment for 10 years is the minimum imprisonment, which can be imposed to the Appellant. Considering Sub-section [2][f] of Section 376 of the IPC, 10 years'' imprisonment is minimum if the rape is committed on a woman when she is under 12 years of age. In the instant case, that is not the situation. Considering Sub-section [1] of Section 376 of the IPC, the punishment prescribed may extend to life or a term which may extend to 10 years but which shall not be less than 7 years. Under such circumstances, the minimum imprisonment prescribed is 7 years. However, considering the proviso attached to Sub-section [1] of Section 376, 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 7 years. In the instant case, as per the jail record, the Appellant has undergone by now 7 years and 2 months in the jail. Considering the facts and circumstances of the case, we are of the considered opinion that the period already undergone in jail would be the adequate sentence of imprisonment and fine of Rs. 500/- and in default of payment of fine, SI for one month for the offence punishable u/s 376 of the IPC would serve the ends of justice. 9.1. So far as the sentence for the offences punishable under Sections 363 and 366 of the IPC is concerned, the trial Court awarded RI for 3 years in each case. We hold that the sentence can be said to be just and proper. However, in connection with both the offences, Appellant was directed to pay fine of Rs. 1,000/- each. Considering the age of the Appellant and his financial condition, so also the over-all facts and circumstances of the case, we are of the opinion that the fine of Rs. 250/- in each case and in default of payment of fine, SI for 15 days in each case would meet the ends of justice.

In the result, the appeal is required to be partly allowed, so far as the order of sentence passed by the trial Court is concerned.

For the foregoing reasons, the conviction of the Appellant for the offence punishable under Sections 363, 366 and 376 of the IPC recorded by the Ld. Addl. Sessions Judge and Presiding Officer, F.T.C. No. 2, City Sessions Court, Ahmedabad, vide judgment and order dated 29/11/2006 in Sessions Case No. 84/2006 is hereby confirmed and upheld.

11.1. However, the order of sentence passed by the trial Court in aforementioned impugned judgment and order is set aside and it is hereby directed that the period already undergone in jail by the Appellant shall be the sentence of imprisonment and fine of Rs. 500/- [Rupees five hundred only] and in default of payment of fine, SI for one month for the offence punishable u/s 376 of the IPC, RI for 3 years and fine of Rs. 250/- [Rupees two hundred fifty only] and in default of payment of fine, SI for 15 days for the offence punishable u/s 363 of the IPC and RI for 3 years and fine of Rs. 250/- [Rupees two hundred fifty only] and in default of payment of fine, SI for 15 days for the offence punishable u/s 366 of the IPC. The substantive sentence of imprisonment shall run concurrently. The Appellant is entitled to the set-off. The appeal is, therefore, partly allowed to the aforesaid extent.