Vivek kumar alias Ajay kumar Rajkishor Chaudhary vs State of Gujarat

Z.K. Saiyed, J.—The present Appellant has preferred this Appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 8.2.2007 passed by the learned Additional Sessions Judge, Court No. 15 Ahmedabad City in Sessions Case No. 272 of 2006, whereby the learned Sessions Judge has convicted the Appellant under Sections 363, 366 and 376 of the Indian Penal Code and sentenced the Appellant, whereby the Appellant was ordered to undergo R.I.of five years for the offences punishable under Sections 363 of the Indian Penal Code and to pay a fine of Rs. 3000/-, in default, to under further S.I. for three months. Learned Sessions Judge was pleased to convict and sentence the Appellant to undergo R.I. of 5 years and to pay a fine of Rs. 5000/-, in default, further S.I. of three months for the offence punishable u/s 366 of the Indian Penal Code and for the offence punishable u/s 376 of the Indian Penal Code, the Appellant was ordered to undergo R.I. for 7 years and to pay a fine of Rs. 7,000/-, in default, further S.I. for three months.

The brief facts of the prosecution case is as under:

The allegations levelled against the accused is that the Appellant accused met the daughter of the complainant named Ashaben on 18.12.2005 near Rameshwar Railway Crossing and with a view to marry the victim, she was induced and compelled by the Appellant, who took her to his sister''s home. After some days, the victim was dropped by the Appellant. Therefore, the Appellant and thereby, the Appellant along with his sister were booked for the offence for the offences punishable under Sections 363, 366, 376 and 114 of the Indian Penal Code registered with Meghaninagar Police Station.

Thereafter, statements of the witnesses were recorded, panchnama was drawn and accused were arrested. The medical check up of the victim was done and due to sufficient evidence against the accused, charge-sheet was filed before the learned Metropolitan Magistrate, Ahmedabad. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate has committed the case to the Court of Sessions, which was numbered as Sessions Case No. 272 of 2006.

Thereafter, the charge was framed against the accused. The accused has pleaded not guilty and claimed to be tried.

To prove the case against the Appellant along with one another accused, the prosecution has produced documentary evidence and also examined 8 witnesses before the trial Court.

Thereafter, after examining the witnesses, further statement of the accused including present Appellant u/s 313 of the Code of Criminal Procedure was recorded in which the Appellant and another accused have denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Additional Sessions Judge, Court No. 15, Ahmedabad City vide judgment and order dated 8.2.2007 held the present Appellant - accused guilty to the charge levelled against him under Sections 363, 366 and 376 of the Indian Penal Code, as stated above and accused Ashaben, sister of the Appellant was acquitted from the charges.

Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Court No. 15, Ahmedabad City, the present Appellant has preferred this appeal.

Learned advocate Mr. Pratik Barot appearing on behalf of the Appellant submitted that there were several contradictions between the documentary evidence produced by the prosecution. He further submitted that the Appellant was knowing the victim, committed sexual intercourse on her with consent of her and that it was told to him that the victim is of 16 years and 8 months. That the Appellant insisted her for marriage and that aspect was not considered by the learned Sessions Judge. The relevant certificate regarding her age was produced, but the learned Sessions Judge did not rely at all on the said leaving certificate. Even before the Doctor at the time of medical examination, the Appellant stated about the love affairs with the victim and, therefore, there was no any intention of committing rape on her and the victim is above 16 years. Therefore, the order impugned is required to be quashed and set aside by allowing the appeal.

The learned APP Mr. H.L. Jani for the State strongly opposed the submissions made by the learned advocate for the Appellant. It was contended by learned APP that the judgment and order of the Sessions Court is just and proper and as per the provisions of law; the Sessions Court has properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present Appellant. The learned Sessions Judge has rightly considered the age of the victim. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.

I have perused the judgment and order and reasons given by the learned Judge also. I have taken into consideration the submissions made by the learned advocates for the parties. After the considering the evidence, the learned Sessions Judge has held guilty and sentenced the Appellant. learned Sessions Judge has convicted the Appellant under Sections 363, 366 and 376 of the Indian Penal Code and sentenced the Appellant and the Appellant was ordered to undergo R.I. five years for the offences punishable under Sections 363 of the Indian Penal Code and to pay a fine of Rs. 3000/-, in default, to under further S.I. for three months. Learned Sessions Judge was pleased to convict and sentence the Appellant R.I. of 5 years and to pay a fine of Rs. 5000/-, in default, further S.I. of three months for the offence punishable u/s 366 of the Indian Penal Code and for the offence punishable u/s 376 of the Indian Penal Code, the Appellant was ordered to undergo R.I. for 7 years and to pay a fine of Rs. 7,000/-, in default, further S.I.

for three months.

Learned advocate Mr. Pratik Barot for the Appellant argued that he is not arguing this matter on merits, but arguing on the quantum of punishment so far it relates to the sentence imposed u/s 376 of the Indian Penal Code. He prayed to reduce the sentence so far Section 376 of the Indian Penal Code is concerned. Learned APP Mr. Jani submitted that the State has no objection, if the Court may consider the quantum of punishment for the offence u/s 376 of the Indian Penal Code.

I have considered his submission about the quantum of punishment and he is in jail from 20.12.2005 and therefore, looking to the quantum of punishment, the sentence imposed by the learned Sessions Judge for 7 years u/s 376 of the Indian Penal Code is required to be modified. The Appellant has undergone period of 4 years, 11 months and 25 days. Therefore, I am of the view that the Appellant is ordered to undergo R.I. for 5 years instead of 7 years for the offence u/s 376 of the Indian Penal Code.

In view of the above, this Appeal is partly allowed. The judgment and order dated 8.2.2007 passed by the learned Additional Sessions Judge, Court No. 15, Ahmedabad City in Sessions Case No. 272 of 2006, holding the Appellant - accused guilty for the offence punishable under Sections 363 of the Indian Penal Code and was pleased to sentence the Appellant to undergo R.I. for 5 years and to pay a fine of Rs. 3000/-, in default, to undergo further S.I. for three months. Learned Sessions Judge was pleased to sentence the Appellant for the offence punishable u/s 366 of the Indian Penal Code, to undergo five years R.I. and to pay a fine of Rs. 5000/-, in default, S.I. for further three months. The Appellant was ordered to undergo R.I. for 7 years and to pay a fine of Rs. 7000/-in default, further S.I. of three months, for the offence punishable u/s 376 of the Indian Penal Code. So far the sentence imposed by the learned Sessions Judge u/s 376 of the Indian Penal Code is concerned, the sentence is hereby reduced to the extent of 5 years instead of 7 years. Therefore, the Appellant is ordered to undergo the sentence of 5 years imposed u/s 376 of the Indian Penal Code.Rest of the judgment shall remain unaltered. R & P, if received, be sent back to the trial Court, forthwith.