(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. Since the R & P was called for, the appeal is finally heard today.
2. The present appeal arises from the judgement and order passed by the learned Sessions Judge in Sessions Case No.134 of 2009, whereby the accused – appellant has been convicted; (i) for the offence punishable under Section 376 of IPC and sentenced for 10 years' RI with the fine of Rs.10,000/- and 2 years' further SI for default in payment of fine; (ii) for the offence punishable under Section 366 of IPC and sentenced for 10 years' RI with the fine of Rs.10,000/- and 2 years' further SI for default in payment of fine; (iii) for the offence punishable under Section 363 of IPC and sentenced for 7 years' RI with the fine of Rs.7,000/- and 1 year's further SI for default in payment of fine. Out of the total fine of Rs.27,000/-, the victim was ordered to be paid an amount of Rs.20,000/- as compensation.
3. As per the prosecution case, the complaint was filed by Changanbhai Abhaysinh – PW-4, that his daughter Jasodaben, whose birth date is 25.11.1994, had gone on the occasion of Holi at about evening on 10.3.2009 with his wife and younger son Vanraj, but he did not see his daughter and, therefore, upon inquiry with his wife, he was informed that Jasodaben, by saying that she was going to the residence of Meena, daughter of the sister of the complainant, had left. In the morning hours when the complainant enquired about Jasoda, he came to know that she had not gone to Meena's place and the enquiry was made with the other relative, but she was not traced. The complainant came to know that his daughter Jasoda was seduced and eloped by one Lalabhai Shanabhai Garasiya and, therefore, the complaint was filed with Morva Police Station on 12.9.2009.
4. The police investigated into the complaint and thereafter the charge-sheet was filed and the case was committed to the Sessions Court being Sessions Case No.134 of 2009. The prosecution, in order to prove the guilt of the accused, examined 12 witnesses, the details of whom are mentioned by the learned Sessions Judge at paragraph 4 of the impugned judgement. The prosecution also produced the documentary evidences of 26 documents, the details of which are also mentioned by the learned Sessions Judge at paragraph 4 of the judgement. Thereafter, the learned Sessions Judge recorded the statement of the accused under Section 313 of Cr.P.C., wherein he has denied evidences against him and in further statement he has stated that the false case was filed against him and he wanted to oblige, but was required to face the false case. The learned Sessions Judge, thereafter heard the prosecution and the defence and ultimately the learned Sessions Judge found the accused guilty for the offence punishable under Section 363, 367 and 376 of IPC. The learned Sessions Judge thereafter heard the prosecution and the defence for sentence and has imposed the sentences as referred to herein above. Under these circumstances, the present appeal before this Court.
5. The learned Counsel appearing for the appellant raised the only contention that even if it is considered that the case was proved for the charged offences, the punishment imposed upon the accused by the learned Sessions Judge for the alleged offence is improper. It was submitted by the learned Counsel for the appellant that the facts have come on record by way of medical history given to the doctor that the victim had voluntarily gone with the accused and they had physical relation voluntarily. It was submitted that there were no injury marks found on the body of the victim as per the medical evidence and keeping in view the said aspect, even it was believed that the victim was aged less than 16 years, punishment imposed for the offence under Section 376 of IPC of 10 years' R.I., may be interfered with. It was also submitted that same is the position for the sentence imposed for the offence under Section 366 of IPC, since the punishment imposed is of 10 years' R.I., which is excessive.
6. It was submitted by the learned Counsel for the appellant that by now the accused has already undergone substantial part of sentence and, therefore, he is restricting the case only on the aspect of sentence. However, the learned Counsel did submit that even the fine imposed is also very heavy, since accused is a very poor person and he has no means to pay and the matter is also assigned to him through Legal Aid Authority.
7. The learned APP, while supporting the judgement of the learned Sessions Judge on the aspects of sentence under Section 376 and Section 366, submitted that the discretion has been properly exercised and as per the sentence imposed by the learned Sessions Judge for the alleged offences.
8. We may state that on the aspect of proportionality of punishment, this Court had an occasion to consider the case under section 376 of IPC wherein the material had come on record to show that the prosecutrix had intercourse with the boy with consent and there was no satisfactory evidence of compulsion for such purpose. In the said case of Cr.P.C., Appeal No.880 of 2006 decided on 22.11.2011, this Court observed at paras 4 to 9 as under:
“4. Learned counsel at the out set submitted that the appellant is not assailing the judgment and order passed by the learned Sessions Judge for finding the appellant guilty for the offence under sections 376, 363 and 366 of IPC and he also submitted that the appellant is restricting the case for the present appeal on the aspect of quantum of punishment. It was submitted by the learned counsel for the appellant that there is evidence available on record, and more particularly of the medical history showing that the prosecutrix had every point of time consented for the sexual intercourse and there was no compulsion made. He fairly conceded that the age of the prosecutrix was 13 years and 2 months, and the offence was found as proved by the learned Sessions Judge, but he submitted that keeping in view the said aspect, the punishment of 10 years imposed upon the appellant is improper, and therefore, this Court may reduce the sentence to the minimum of 7 years. He also relied upon the decision of this Court in the case of Thakore Tejaji Devaji & Ors. vs. State of Gujarat, reported in 2006 (4) GLR page 2807 and in the case of Shanabhai Chandubhai Vasava vs. State of Gujarat, reported in 2006 Cri.L.J. 3252.
5. Whereas, the learned APP supported the quantum of punishment imposed by the learned Sessions Judge contending, inter alia that, once the offence is proved, the Court has appropriately imposed the punishment. Therefore, it was submitted that no interference be made by this Court on the quantum of punishment.
6. We may state that on the aspect of proportionality of punishment, the law is by now well settled. It is not that the punishment has to be imposed to the fullest extent or to the maximum in every case once the accused or offender is convicted for a particular offence, but at the time of imposition of punishment, the nature of the offence, its gravity, the effect on the society and the personal circumstances are some of the aspects which would be required to be taken into consideration. But at the same time, it cannot be said that they are exhaustive, there may be additional circumstances warranting the Court to modulate appropriate punishment unless it is barred by express provision of the statute. However, it would be required for the Court to record specific reason at the time when the punishment is to be imposed including that for a minimum provided by the statute or higher up to the maximum punishment.
7. Examining the facts of the case, it does appear that the offence can be said as committed on account of the age of the prosecutrix under section 376 of IPC. So far as the punishment imposed by the learned Sessions judge for the offences under section 363 and 366 of IPC are concerned, they are in any case not exceeding 7 years, and as all the sentences are to be undergone concurrently. The punishment which may be required to be considered by us in the present appeal now would be under section 376 of IPC and the reason being that the appellant, as declared by the learned counsel for the appellant, has already completed about seven years imprisonment on 10.11.2011.
8. It does appear from the evidence on record of Dr. Nitinbhai Janakbhai Dave, PW-9 Exh.35, that the prosecutrix in medical history had declared that she had gone with consent and they had stayed together for one night and the prosecutrix had intercourse with the boy Sanjay. She has not declared about any force or compulsion for such purpose. The very doctor has also deposed that when he examined the prosecutrix, there was no injury on any part of the body of the prosecutrix. In the deposition of Dr.Kaushik Narendrabhai Vyas, PW-10 Exh.38, in the medical history, there is reference to the sexual intercourse with consent two years back and thereafter it was stated that the accused had sexual intercourse without consent. In the said evidence also, nothing has come out from the medical papers that there was any injury on the body or private part of the prosecutrix. Therefore, the circumstances of applying force or creating compelling circumstances by the accused though may not be relevant aspect for finding him guilty for the commission of the offence under section 376 of IPC since the age of the prosecutrix was 13 years and 2 months only, but such may be one of the relevant aspect while considering the question of quantum of punishment. In the case of Thakore Tejaji Devaji (supra), this Court, more particularly in para-16, did observe that when a technical rape is established by the prosecution, there was no reason for the Court to impose the punishment which is more than minimum punishment prescribed. The Court further observed that while imposing punishment, the Court should look to such an accused with reformative eyes and may not be so harsh. In the case of Shanabhai Chandubhai Vasava (supra), this Court, more particularly in para-12, did observe taking into consideration the socio-economic background of the parties and circumstances in which the offence has been committed deserve to be considered on the point of quantum of sentence.
9. It is in view of the aforesaid facts and circumstances referred to hereinabove by us, we find that the appropriate punishment could be imposed by the learned Sessions Judge for the offence under section 376 of IPC of 7 years rigorous imprisonment being the minimum sentence provided.”
9. If the facts of the present case are examined in light of the above referred legal position, as per the evidence of Dr.Raveendrakumar Lakhanprasad Yadav, PW-9, Ex.23 in the medical history, the victim stated before the doctor that she had umpteen number of times sexual relation with the accused Lalabhai Shanabhai Garasiya and the last she had with him 3 days before and thereafter she had taken bath and changed the clothes. The aforesaid part of medical history is supported by certificate issued by the doctor, which has also come in evidence. In the evidence of the said witness it has also been stated by the doctor that there were no injury on any part of the body of the victim when he examined her.
10. In the evidence of Naveenchandra Vithalbhai Desai, I.O., PW-12, Exh. 31, he has admitted that when he recorded the statement of the victim, she had stated before the police that her birth was during the period when her father had the first wife and when she was of younger age, her mother had expired and, therefore, her father married to another lady Shakuntala and she did not remember the name of her mother. She further stated before the I.O., that her father had an habit of drinking liquor and when she was going for watching TV to her uncle's place, her father had a doubt that the victim had love affair with the accused and, therefore, he was beating her after consuming liquor and, therefore, she was also compelled to leave the studies and her step- mother was not interfering in the same, but she was saying that the victim should not go to the accused and, therefore, was fed up with the doubt and the beating of her parents. She further stated before the I.O. that on 10.3.2009 when the accused was working as agricultural labour in Kutch had come for Holi, her father and mother had beaten her by saying that the victim was not available and, therefore, on the day of Holi after 12 O'Clock night, when she saw the accused, she left the home and had slept on Otta, since there was apprehension that she would be beaten by her parents and in the morning when she got up, she had gone to the house of Dada (grandfather) where nobody was there and thereafter she had taken two pairs of clothes for going to her auntie's place, Kesarben at Chardoli and she was standing at the bus-stop and she had only Rs.10/- with her and at that time. The accused Lalabhai met her and enquired as to where she was to go and she informed she was going to auntie's place and the victim further enquired to the accused, where he was going, to which the accused replied and said that he was going for labour work. The victim thereafter told him that since the parents are beating her she was not desirous to stay with the parents and she was desirous to go with the accused to Kutch and thereafter both had gone to Ahmedabad and thereafter Kutch.
11. In the evidence of the victim – PW-1, Exh. 7 in the examination-in-chief, she has admitted that from Lunavada, she had gone to Ahmedabad with the accused and they had stayed in the bus stand of Ahmedabad. Thereafter, the victim and the accused had gone to Anchar and from Anchar, they had gone to Lunavada and they stayed three days at Lunavada.
12. In our view, even if it is considered that the age of the victim was less than 16 years, which may constitute the offence punishable under Sections 376 and 366 of IPC, the aforesaid aspect have the relevance while imposing sentence. Keeping in view all the facts and circumstances of the case, as referred to herein above, we find that the appropriate sentence required to be imposed was 7 (seven) years' R.I., for the offence punishable under Sections 376 and 366 of IPC, in place of 10 years' R.I., as imposed by the learned Sessions Judge. It appears that even on the aspect of quantum of fine, keeping in view the financial position of the accused that he was a labour, the sentence in default of fine deserves to be appropriately modified.
13. However, the default sentence appears to be on higher side and, therefore, it would be appropriate to reduce the default sentence to three months' SI and two months' SI, in place of two years' SI as well as one year's SI, for the fine of Rs.10,000/- each as well as Rs.7,000/- respectively.
14. Under these circumstances, while maintaining the conviction of the accused on the aspects of sentence, it would be just and proper to reduce the sentence for the offence punishable under
the sentence of fine for Rs.10,000/-, for offence under Sections 376 and 366 does not deserve to be reduced, except that in default of payment of fine, there shall be 3 (three) months' SI, in place of two years' SI; the sentence for the offence punishable under Section 363 of IPC shall be 7 (seven) years' R.I., with the fine of Rs.7,000/-, but in default, there shall be 2 (two) months' SI, in place of one year's SI. The other part of the judgement does not deserve to be interfered with.
15. In view of the aforesaid observations and discussion, the appeal is partly allowed. The impugned judgement and order of conviction passed by the learned Sessions Judge in Sessions Case No.134 of 2009 for the offence punishable under Sections 376, 366 and 363 is hereby confirmed, but on the aspects of sentences and fines, the judgement and order of the learned Sessions Judge is modified to the effect that (i) the sentence for the offence punishable under Section 376 of IPC shall be 7 (seven) years' R.I., in place of 10 years' RI with the fine of Rs.10,000/-, but in default there shall be 3 (three) months' SI, in place of two years' SI; (ii) the sentence for the offence punishable under Sections 366 of IPC shall be 7 (seven) years' R.I., in place of 10 years' RI with the fine of Rs.10,000/-, but in default there shall be 3 (three) months' SI, in place of two years' SI; (iii) the sentence for the offence punishable under Section 363 of IPC shall be 7 (seven) years' R.I., with the fine of Rs.7,000/-, but in default there shall be 2 (two) months' SI, in place of one year's SI.
16. The other part of the sentence is not required to be interfered with. It is further ordered that all sentence shall be undergone concurrently by the accused and the benefits of the set off under Section 428 of Cr.P.C., shall also be available to the appellant – accused. The other part of the sentence is not interfered with. The other part of the direction under Section 357 of Cr.P.C., is also not interfered with.
(Jayant Patel, J.)
(Paresh Upadhyay, J.)
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