(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal arises against the judgment and order passed by the learned Sessions Judge in Sessions Case No.50/06 whereby the learned Sessions Judge has convicted the appellant accused and for the offence under section 363 of IPC, sentence has been imposed of 3 years imprisonment, for the offence under section 366 of IPC, sentence has been imposed of 7 years imprisonment and for the offence under section 376 of IPC, sentence has been imposed of 10 years imprisonment. No fine has been imposed and all sentences are ordered to be undergone concurrently.
2. As per the prosecution case, a complaint was filed by one Jagdish Khatubhai Vaghela, p.w.1, stating that his daughter Dipika aged 15 years had gone for labour work as usual on 21.08.2005 Sunday and she had left the home at 9.00 O' clock alone and she was to come back at 5.30 in the evening, but she did not come and therefore, he started inquiring to the relatives, but she was not traced. On 26.08.2005, in the morning, the application was given to the Saherkotda Police Station informing that his daughter without saying anything has left. Thereafter, upon further inquiry, it was learnt through Kesarben and Shantaben and other labourers that Dipika was seen by them at the godown at 10.00 O'clock in the morning and she was not seen at the time when the work was over and simultaneously, the another labourer Dilip Nivruti Varande (accusedappellant herein) was also not coming for labour work since the day on which Dipika was missing and they had seen Dipika and the accused talking with one another and therefore, the accused Dilip had eloped her by seducing from the guardianship and therefore, appropriate action be taken and the said complaint was registered with Saherkotdra Police Station.
3. The police investigated into the complaint and thereafter, the chargesheet was filed and the case was committed to the Sessions Court being Sessions Case No.50/06. The prosecution in order to prove the guilt of the accused, examined 9 witnesses, details of whom are mentioned by the learned Sessions Judge in the impugned judgment. The prosecution also produced the documentary evidence of 19 documents, details of which are also mentioned by the learned Sessions Judge in the impugned judgment. Thereafter, the learned Sessions Judge recorded the statement of the accused under section 313 of Cr.P.C. wherein the accused denied the evidence against him and in the further statement, he stated that he was doing labour work and the victim was also doing labour work. The complainant had proposed to the accused for marriage with Dipika. It was not accepted by the accused and therefore, the present complaint has been filed.
4. The learned Sessions Judge thereafter heard the prosecution and the defence and found the accused guilty of the offences under section sections 363, 366 and 376 of the IPC.
5. The learned Sessions Judge thereafter, heard the parties for sentence and ultimately, imposed sentence as referred to hereinabove by the impugned judgment. Under the circumstances, the present appeal before this Court.
6. 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 offences is improper. It was submitted by the learned counsel for the appellant that the facts have come on record by way of the medical history given to the Doctor that there was consent for the physical relation by the victim with the accused. The accused and the victim had love affair. The victim had not supported the case of the prosecution and she was declared hostile. Under the circumstances, even if it was believed that the victim was aged less than 16 years, the punishment imposed under section 376 of 10 years RI, may be interfered with by this Court. It was also submitted by the learned counsel for the appellant that by now, the accused has already undergone the sentence for about more than 6 years and therefore, he is restricting the case only on the aspect of sentence.
7. The learned APP while supporting the judgment of the learned Sessions Judge on the aspect of sentence under section 376, submitted that the discretion has been properly exercised and therefore, the sentence imposed by the learned Sessions Judge for the alleged offence under section 376 is just and proper.
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, 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, Dr.Gautam who has been examined as PW 6, exhibit 17 who had examined the victim. In the medical history, the prosecutrix had stated before the Doctor that she was knowing Dilip since last 8 months and Dilip was working with her in Cotton West Market and she was loving him. She had voluntarily gone with him on 21.08.2005 at about 8.30 in the morning in rickshaw from Shardaben Hospital to Kalupur Railway Station and from there, they had gone to Bombay by railway and they had stayed for 3 days at the residence of his cousin and thereafter, from that place they had gone to Satara in Maharashtra in the village of Dilip and their they had stayed for about one week. Thereafter, on Thursday, at about 2.00 O' Clock, on 01.09.2005, Saherkotda police had come for arresting them and they were brought to Ahmedabad Police Station. During the said period, she had voluntary physical relationship for 34 times with Dilip. The aforesaid medical history is supported by the injury certificate. The said Doctor has further deposed that when he examined the victim, there was no injury marks on the cloth or on the body or private parts of the victim.
10. Apart from the above, if the evidence of the victim Dipikaben herself, p.w.4, exhibit 13 is considered, she initially did not support the case of the prosecution and therefore, she was declared hostile and thereafter, she was cross examined by the learned APP and in her cross examination, she has admitted that she had love affair with Dilip and she had gone voluntarily and at different places, they moved together. Had there been any compulsion upon her, she could have ran away or shouted at any point of time. But there is no evidence led for such purpose
11. In our view, even if it is considered that the age of the victim was less than 16 years which may attract offence under section 376 of IPC, the aforesaid aspects have relevance while imposing sentence. Keeping in view the facts and circumstances of the case as referred to hereinabove, we find that the appropriate sentence required to be imposed was 7 years RI for the offence under section 376 of IPC and not 10 years RI, as imposed by the learned Sessions Judge. Therefore, it appears to us that the judgment and order passed by the learned Sessions Judge deserves to be interfered with to that extent.
12. Under the circumstances, while maintaining the conviction of the accused on the aspect of sentence, it would be just and proper to reduce the punishment for the offence under section 376 of IPC by 7 years in place of 10 years imprisonment as imposed by the learned Sessions Judge. The other part of the sentence are not required to be interfered with.
13. In view of the aforesaid observations and discussions, the appeal is partly allowed. The impugned judgment and order of conviction passed by the learned Sessions Judge in Sessions Case No.50/06 for the offence under sections 363, 366 and 376 of the IPC is hereby confirmed but on the aspect of sentence, the judgment and order of the learned Sessions Judge is modified to the effect that the sentence for the offence under section 376 of IPC shall be 7 years RI in place of 10 years RI. The other part of the sentence imposed is not interfered with.
(JAYANT PATEL, J.) *bjoy (PARESH UPADHYAY, J.)