Vishnuji Somaji Thakor vs State of Gujarat

Honourable Mr. Justice J.C. Upadhyaya

The challenge in this appeal is to the judgmentand order dated 5.12.2005 rendered in Sessions CaseNo. 36/2005 by the learned Addl. Sessions Judge, FastTrack Court No. 4, Gandhinagar at Kalol, whereby, theappellant herein, who was original accused in theaforesaid sessions case, came to be convicted for theoffences punishable u/s 376, 363, 366 and 506(2) of Indian Penal Code and u/s 135(1) of the Bombay Police Act and was sentenced to undergorigorous imprisonment for 10 years and fine of Rs.5000/- , and in default of payment of fine, simpleimprisonment for six months for the offencepunishable u/s 376 of IPC, rigorousimprisonment for 5 years and fine of Rs. 3000/- , andin default of payment of fine, simple imprisonmentfor three months for the offence punishable undersection 363 of IPC, rigorous imprisonment for 5 yearsand fine of Rs. 3000/- and in default of payment offine, simple imprisonment for three months for theoffence punishable u/s 366 of IPC, rigorousimprisonment for 3 years and fine of Rs. 2000/- , andin default of payment of fine, simple imprisonment for two months for the offence punishable undersection 506(2) of IPC and simple imprisonment for sixmonths for the offence punishable u/s 135 of the Bombay Police Act. All the sentences awardedto the appellant-accused were ordered to runconcurrently. He was also given benefit of set-off.

The case of the prosecution as unfolded during thetrial is that at about 2.00 a.m., during the nighthours, on 21.4.2005, girl Aruna, aged about 15 yearsand 10 months, was not found in her home. Firstinformant, Bhemaji Babaji, father of girl Aruna, made inquiry about missing girl Aruna. He reported the incident to Kalol Taluka Police and FIR was registered. It is further revealed that the appellant-accused allegedly kidnapped Aruna and threatened her by showing knife and Aruna was rapedby the accused. She was taken to different places andafter some time, both, Aruna and the accused came tobe found out. When the statement of Aruna wasrecorded by the police, it was disclosed that she wasraped and, therefore, medical examination of thevictim as well as accused came to be performed.Statements of material witnesses came to be recorded.Necessary panchnamas came to be drawn in the presenceof panchas. After the investigation was concluded, charge-sheet came to be filed in the Court of learnedJudicial Magistrate (First Class), Kalol. Since theoffence is exclusively triable by the Court of Sessions, learned Magistrate committed the case tothe Court of Sessions, at Gandhinagar, which wasregistered as Sessions Case No. 36/2005.

The trial Court framed charge against the accusedat Exh. 4, to which, the accused did not plead guiltyand claimed to be tried. Thereupon, the prosecutionexamined 9 witnesses and relied upon 13 documents,detailed in paras-5 and 6 of the impugned judgment.After the prosecution concluded its oral evidence,the trial Court recorded further statement of theaccused u/s 313 of CrPC, and the accused inhis further statement denied all the incriminating circumstances brought to his notice by the trial Court and stated that he was falsely implicated in the case. The trial court, after examining and appreciating the oral and documentary evidence produced by the prosecution and considering the submissions advanced on behalf of both the sides,ultimately, came to the conclusion that theprosecution successfully proved its case beyond anyreasonable doubt and recorded the conviction of theaccused for the offences charged against him andawarded the sentence, as hereinabove referred to inthe judgment.

Mr. P.R. Joshi learned advocate for the appellant-accused, at the out-set, submitted that consideringthe overall evidence on record, and moreparticularly, considering the evidence of the prosecutrix and considering the fact that at the timeof incident, she was under 16 years of age, theappellant-accused is not assailing his conviction for the offences charged against him, but the appeal is,therefore, confined only to the issue of sentence.Mr. Joshi learned advocate submitted that as a matterof fact, considering the evidence on record and moreparticularly, deposition of the prosecutrix, it isabundantly clear that the prosecutrix and the accusedwere knowing each other even prior to the date of thealleged incident and they were in love, and in fact,they decided to leave their home. It is submittedthat only because at the relevant time, theprosecutrix was under 16 years of age, her consentwas immaterial and irrelevant and technicallyspeaking the accused can be said to have committedthe offence. Mr. Joshi learned advocate for theappellant-accused submitted that in the instant case,the appellant-accused came to be arrested on29.4.2005 and since then, he is in jail, and thus, heis in jail for the period of about 6 years and 7months. He submitted that at the relevant time eventhe appellant-accused was aged about 23 years. Theentire family is dependent upon the income of theaccused. Mr. Joshi further submitted that even afterthe alleged incident, the prosecutrix got married andshe is properly settled down in the society with herhusband. Mr. Joshi learned advocate, therefore,submitted that these are the special and adequatereasons to award the sentence less then the minimum prescribed u/s 376 of IPC. Mr. Joshisubmitted that since the minimum sentence prescribedis imprisonment for 7 years and in the instant case,the accused has already undergone the period of 6years and 7 months, the period undergone by him maybe considered to be his appropriate sentence. Mr.Joshi submitted that the accused had paid the totalamount of fine of Rs. 13,000/- awarded by the trialCourt. It is, therefore, submitted that the appealmay be partly allowed on the issue of sentence.

Mr. K.P. Raval learned APP for the respondent-State opposed this appeal and submitted that sincethe appellant ? accused is not challenging hisconviction, considering the facts and circumstancesof the case, and more particularly, considering theage of the prosecutrix, the sentence awarded by thetrial Court is perfectly legal and valid and there isno reason to interfere with the sentence awarded bythe trial Court to the appellant-accused.

Since the appeal is not pressed on the count ofconviction, so it would not be necessary for thisCourt to re-appreciate and re-examine the oral anddocumentary evidence adduced by the prosecution.Suffice it to say that so far as the age of theprosecutrix is concerned, there is no dispute that atthe relevant time, her age was 15 years and 10months. Considering the deposition of the prosecutrixsupported by the medical evidence, the prosecutrix was raped by the accused. However, in her cross-examination, she admitted that prior to about 2 yearsfrom the date of the incident, she was knowing theaccused. It further transpires that during the periodshe stayed with the accused, there were ampleopportunities to escape from the custody of theaccused or to complain to any other person about herkidnapping but nothing whatsoever was done.

However, there is no dispute that at the time ofthe incident, the prosecutrix was under 16 years ofage. Thus, technically speaking the offence chargedby the prosecution against the appellant-accused canbe said to have been constituted and the prosecutionsuccessfully proved the same. Thus, the instantappeal is now pressed only on the count of sentence.So far as the sentence awarded by the trial Court for the offence punishable u/s 376 of Indian Penal Code is concerned, he has been awarded R/I for10 years and fine of Rs. 5000/- , and in default ofpayment of fine, S/I for 6 months. There is nodispute that by now the appellant-accused hasundergone about 6 years and 7 months in jail. It istrue that as per section 376 of Indian Penal Code,the minimum sentence for the said offence provided isimprisonment for 7 years. However, for adequate andspecial reasons, the Court may imposed animprisonment for a term of less then 7 years. In theinstant case, as stated above, at the time ofincident, the appellant was aged about 23 years. It has also been submitted that after the incident, theprosecutrix got married and was properly settled downin the society. It further transpires considering thesubmissions advanced on behalf of the appellant thatin the family of the appellant, he is the soleearning member. Mr. Joshi learned advocate placedreliance upon the case of Ramkumar Vs. State ofHaryana, 2006(4) SCC p. 347, wherein, in case ofconviction for the offence punishable u/s 376 of Indian Penal Code, the fact that the victimhad been married and was living with her husband wasconsidered to be a mitigating circumstance and thesentence was reduced to three years.

Considering the facts and circumstances of the case and in view of the above discussion, we are ofthe considered opinion that the period undergone bythe appellant-accused in jail by now being about 6years and 7 months can be considered to be anadequate sentence of imprisonment for the offencepunishable u/s 376 of Indian Penal Code.The sentence of imprisonment awarded to him by thetrial Court regarding other proved offences are lessthan the period already undergone by him, andtherefore, no alteration is necessary. It has beensubmitted on behalf of the appellant that he has paidup the total fine of Rs. 13,000/- .

For the foregoing reasons, the appeal is partlyallowed on the count of sentence only. The conviction of the appellant ? accused recorded by the learnedAddl. Sessions Judge, Fast Track Court No. 4,Gandhinagar at Kalol on 5.12.2005 in Sessions CaseNo. 36/2005 for the offences punishable u/s 376, 363, 366 & 506(2) of Indian Penal Code, and section 135 of the Bombay Police Act, is confirmedand upheld. However, the sentence awarded to theappellant to undergo R/I for 10 years for the offencepunishable u/s 376 of Indian Penal Code, isreduced to the period already undergone by him injail by now, maintaining the sentence of fine awardedto the appellant by the trial Court. The sentenceawarded by the trial Court for the remaining offencesare confirmed and upheld. All the sentences ofimprisonment shall run concurrently and the appellantshall be entitled to benefits of set-off. Theappellant-accused shall be set at liberty forthwith,if his presence is not required in jail in connectionwith any other matter.