1. The present appellant has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 7.7.2008 passed by the learned Addl. Sessions Judge & Presiding Officer, Fast Track Court no. 5, Gondal at Dhoraji in Sessions Case No.55/2007, whereby, the learned Judge has convicted the appellant under sec. 376 of IPC and sentenced to undergo R/I for 7 years and to pay a fine of Rs. 100/-, in default, to undergo further S/I for one year. The appellant is also convicted under sec. 506(2) of IPC and sentenced to undergo R/I for a period of one year and to pay a fine of Rs 50/-, in default, to undergo further S/I for three months, which is impugned in this appeal. All the sentences were ordered to be run concurrently.
2. The brief facts of the prosecution case is as under:
3. That on 9.2.1996, at about 1.00 hours in the night, the appellant-accused has committed rape on the prosecutrix by showing knife and also threatened her to kill if she informs about the rape committed by the appellant, to anybody.
4. Therefore a complaint came to be filed by the prosecutrix. The panchnama of the clothes put on by the victim was prepared in the presence of panch witness and statements of other witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned Judicial Magistrate First Class, Dhoraji. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was given number as Sessions Case No.55/2007.
5. Thereafter, the charge was framed at Ex. 19 against the appellant. The appellant accused has pleaded not guilty and claimed to be tried.
6. In order to bring the home the charge levelled against the appellant- accused, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court.
7. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.
8. After considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 7.7.2008 held the appellant accused guilty to the charge levelled against him under sec. 376 and 506(2) of IPC and convicted and sentenced the appellant accused, as stated above.
9. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Dhoraji, the present appellant has preferred this appeal.
10. Heard Mr. Virat Popat learned advocate for the appellant and Mr HH Parikh learned APP for the respondent-State.
11. Mr.
Virat Popat learned advocate appearing for the appellant has fairly admitted that he is not arguing the matter on merits, but he is arguing the matter only on the point of quantum of punishment. He has read the charge and the judgment and order of conviction and sentence and contended that though it was established before the learned Judge that there was a love affair between the appellant and prosecutrix and both were major, however, the same was not considered by the learned Judge and, therefore, question regarding consent was also not considered by the learned Judge. Mr Popat has further contended that from the oral evidence of prosecutrix, it was also established beyond reasonable doubt that there was a consent of the prosecutrix. From the medical evidence, not a single iota of evidence with regard to any injury was found on the body of prosecutrix. Mr Popat has also contended that FSL report is also in favour of the appellant. Mr. Popat has submitted that the appellant has already undergone the sentence of 2 years and 4 months and, therefore, sentence imposed upon the appellant is very harsh and, the same may be reduced.
12. Learned APP Mr. Parikh appearing for the State has contended that this is not a case of consent. He has drawn my attention to the circumstantial evidence and argued that before the learned Judge it was established beyond reasonable doubt that the appellant has committed serious offence under sec. 376 and 506(2) of IPC. Mr Parikh has also submitted that the evidence of prosecutrix is sufficient and no corroboration is necessary to prove the case and, therefore, this appeal may be dismissed.
13. I have considered the submissions made by the learned advocates appearing for the parties and perused the papers. I have also gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecutrix. No doubt, in the cross-examination, the defence has tried to establish that there was love affair between the appellant and prosecutrix and the age of the appellant at the time of incident was only 22 years and he was doing labour work and having two children and he is the only bread winner in the family . In that view of the matter, I am of the opinion that the sentence imposed upon the appellant is very harsh and the same requires to be reduced. This Court, without entering into the merits of the matter, the sentence to undergo R/I for 7 years imposed upon the appellant by the learned Addl. Sessions Judge is requires to be reduced.
14. In the result, this appeal is partly allowed. The impugned judgment and order of conviction dated 7.7.2008 passed in Sessions Case No. 55/2008 by the learned Addl. Sessions Judge & Presiding Officer, Fast Track Court No. 5, Gondal at Dhoraji convicting the appellant-accused under sec. 376 and 506(2) of IPC is hereby confirmed. However, the order of sentence sentencing the appellant-accused to undergo R/I for 7 years for the offence under sec. 376 of IPC, is hereby reduced to the extent that instead the appellant-accused is hereby sentenced to undergo R/I for 3 years and 6 months. Rest of the impugned judgment and order of conviction and sentence is hereby confirmed.
(Z.K.
SAIYED, J) mandora/ Top