(Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY) 1. This appeal is directed against the judgment and order dated 31.5.2007 passed by the learned Sessions Judge, Bhavnagar in Sessions Case No. 160/2006, whereby, the present appellant is convicted for the offence under section 363, 366, 376 and 506(2) of IPC. The learned Sessions Judge has imposed the sentences on the present appellant as under:
1) For the offence under section 363 of IPC, 5 years R/I with fine of Rs. 1000, and for default in payment of fine, further four months R/I.
2) For the offence under section 366 of IPC, 7 years R/I with fine of Rs. 2000, and for default in payment of fine, further six months R/I.
3) For the offence under section 376 of IPC, 10 years R/I with fine of Rs. 2000, and for default in payment of fine, further six months R/I.
4) For the offence under section 506(2) of IPC, six months R/I.
5) All the sentences are ordered to run concurrently.
2. The case of the prosecution in brief is to the effect that, on 27.4.2006, at about 8.00 O'clock, in the morning, when the complainant Bhothabhai Merabhai had gone to the field with his wife and son for labour work, his daughter Raiyaben, aged about 13 years at the relevant time, and his younger son Mukesh aged about 9 years were at home and the husband of cousin sister of victim Raiyaben, present appellant, came to the house of the complainant and by showing knife had taken the victim Raiyaben on his bicycle. The cause as mentioned in the complaint by the father of the victim is that the engagement of the victim was fixed, to which, the appellant, who is son-in-law of the family, was objecting.
3. Pursuant to the complaint, the offence came to be registered being C.R.No.I-50/2006 with Umrala Police Station (District: Bhavnagar) and was investigated and ultimately, the appellant was arrested. On completion of investigation, the charge-sheet was filed. Since the case being triable by the Court of Sessions, it was committed to the Court of Sessions and the charge was framed at Exh. 2.
4. To prove the case, the prosecution had led the oral evidence of 10 witnesses and had also produced the documentary evidence, the details of which are mentioned in the judgment recorded by the learned Sessions Judge. Thereafter, the learned Sessions Judge recorded the statement of the accused under section 313 of CrPC, wherein, the accused denied the evidence against him. Thereafter, the learned Sessions Judge, after hearing the prosecution and the defence found the accused guilty of the charged offence. The learned Sessions Judge thereafter, heard the matter on the aspect of sentence and ultimately, imposed the sentence as referred to hereinabove. Under the 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 offences is on the higher side. It was submitted by the learned counsel for the appellant that it is evident that there was no injury marks on the private part of the victim and the age of the victim is also stated to be 13 years by the father of the victim. In his submission even if it is assumed that there was a physical relationship, it was with the consent on the part of the victim, but considering the fact that the age of the victim was 13 years, the consent aspect may become irrelevant in the eye of law and, therefore, conviction be maintained, but in view of the decision of this Court in Criminal Appeal No. 1872/2006, the sentence ought to have been of 7 years R/I and not 10 years R/I, as imposed by the learned Sessions Judge for the offence under section 376 of IPC.
6. As against the say of the learned counsel for the appellant, learned APP Mr. Pandya has supported the judgment and order passed by the learned Sessions Judge and has submitted that considering the age of the victim, which as per the school leaving certificate, is of about 10 years, this Court may not interfere in the quantum of sentence as imposed by the learned Sessions Judge. Learned APP has also supported the conviction recorded by the learned Sessions Judge.
7. Since the learned counsel for the appellant has restricted his case only to the question of quantum of sentence, this Court is not required to go into the aspect of conviction recorded by the learned Sessions Judge for the offences under section 363, 366 and 376 of IPC. The sentences imposed for these three principal offences is 5 years, 7 years and 10 years and as per the order of the learned Sessions Judge, all the sentences were ordered to run concurrently, and therefore, the sentence imposed for the offence under section 376 of IPC would be relevant consideration at this juncture. We may state that on the aspect of proportionality of punishment, this Court had an occasion to consider the question of sentence 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, this Court observed at para 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.”
8. Keeping in mind the above referred legal position, if we examine the facts of this case, on appreciating the evidence which has come on record, we find that the father of the victim Bhotabhai Merabhai PW-2 is examined at Exh.20, and from his deposition, it has come on record that the age of the victim was about 13 years at the time of incident. Here it needs to be recorded that the deposition was given before the Court on 5.2.2007 and in the complaint which was given on 28.4.2006, also the age of the victim was stated to be 13 years. Even the charge framed against appellant by the learned Sessions Judge, the age of the victim was also stated about 13 years. Thus, during the trial, school leaving certificate of the girl has come on record which shows the date of birth of victim as 23.7.1996. Going by this date, on the date of the incident, it can be said that the age of the girl was about 10 years. However, if this document is weighed vis-a-vis the deposition of the Principal of the school, we find from the cross- examination of Kishorkumar Himmatlal Trivedi PW-8 Exh. 39, wherein, he has deposed to the effect that the age as entered in the General Register of the School could be on the basis of the memory of the parents. The rural as well as social back ground of the complainant would go to show that it was more probable that the parents of the girl may not be knowing the exact date of birth of their child and further the father of the victim is consistent in his complaint as well as in his deposition that the age of the girl was 13 years. Considering this aspect, we are inclined to take the view that the age of the victim on the date of the incident was about 13 years and not 10 years.
9. The victim is also examined in-camera as PW-3 at Exh. 22. From her deposition, it has come on record that the wife of the present appellant-accused named Ramuben is her cousin sister and that the victim was very close to her, and all the personal things of the victim were being shared with her. It has also come on record that the parents of the victim had arranged the engagement of the victim with a person whom the victim did not like and she herself had objected to that relationship. The present appellant who was son-in-law in the family had also objected to that engagement. Under these circumstances, when the victim girl herself had objected to her engagement, the possibility of the girl going on her own can also not be ruled out. If the say of the victim is weighed vis-a-vis the deposition of Doctor and the medical evidence, we find that no force appears to have been put by the appellant on the victim girl even while commission of the offence. Further, the age, as discussed hereinabove, being taken to be of 13 years, the gravity of the offence under section 376 of IPC would be reduced and thereby the case would be fall within the four corner of the view taken by this Court in Criminal Appeal No. 1872/2006, wherein, it is held that under these circumstances, the sentence ought to have been 7 years and not 10 years.
10. Dr. Amitbhai Chhelubhai PW-1 is examined at Ex. 14. In his deposition, he has deposed that there was no injury marks found on the private part of the victim and on physical examination, it was found that though hymen was ruptured, no force was applied on the victim. He has also deposed that he is not aware of the history given by the victim to him when she was examined. The medical examination papers have also come on record and even in those papers, the history was not recorded by the doctor. Under these circumstances, the say of the victim to the effect that there was force of compulsion by the appellant with the help of knife or otherwise, is not being substantiated and under these circumstances the gravity of the offence under section 376 of IPC is reduced substantially. Further considering the factor that the age of the victim girl was less than 16 years and therefore, inspite of her consent, offence is constituted and under these circumstances, we are of the view that considering the view which the Division Bench of this Court has taken earlier as recorded in Criminal Appeal No. 1872/2006,the same view deserves to be taken even in the present case.
11. Under these circumstances, while maintaining the conviction of the appellant-accused, on the aspect of sentence, it would be just and proper to reduce the quantum of punishment for the offence under section 376 of IPC to 7 years R/I in place of 10 years R/I as imposed by the learned Sessions Judge. The other part of the sentence for imposition of fine of Rs. 2000/- and for default in payment of fine, R/I for six months, is not interfered with.
12. The appeal is partly allowed. The impugned judgment and order dated 31.5.2007 passed by the learned Sessions Judge, Bhavnagar in Sessions Case No. 160/2006 recording conviction for the offence under section 363, 366, 376 and 506(2) of IPC is hereby confirmed. However, on the aspect of sentence, the judgment and order passed by the learned Sessions Judge is modified to the extent that the sentence for the offence under section 376 of IPC shall be 7 years R/I in place of 10 years R/I. The other part of the sentences imposed is not interfered with. The appeal is partly allowed accordingly.
[JAYANT PATEL, J.]
[PARESH UPADHYAY, J.]
mandora/