(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgment and the order passed by the learned Sessions Judge in Sessions Case No.144/06, whereby the learned Sessions Judge has convicted the accused for the offence under sections 363, 366, 376 and 506(2) of IPC and has imposed sentence of 3 years RI with the fine of Rs.500 and 3 months RI for default in payment of fine, for the offence under section 363 of IPC and imposed sentence of 5 years RI with the fine of Rs.1,000 and 6 months RI for default in payment of fine for the offence under section 366 of IPC and has imposed sentence of 10 years RI with the fine of Rs.1500 and 10 months RI in default of payment of fine for the offence under section 376 of IPC.
2. As per the prosecution case, a complaint was filed by the victim that on 31.01.2006 at about 12.00 O' clock when she had gone to sewing class from her house, one Hitesh Rickshawala residing in Shrijinagar told her that her mother was seriously ill and she was taken to Anand Hospital and therefore, she was disturbed and she boarded in the rickshaw with Hitesh who was residing in the society of the victim. The rickshaw was taken towards Anand and she was taken to one place like hotel and she was also taken to room wherein she inquired that where was her mummy to which Hitesh told her that her mummy was not sick but he has brought her and thereafter he had closed the door of the room and tied her legs and thrown on the bed and thereafter committed rape.
She was also threatened that if she talks to somebody about the incident, he will not allow her to remain alive and will kill her and thereafter, Hitesh brought her to Bakrol in rickshaw and left her. She narrated the incident to her mummy who told her that after her Dadi Ramilaben comes from Shirdi, the action will be taken and thereafter, the complaint was filed with Vidhyanagar police station.
3. The police investigated into the complaint and thereafter, charge sheet was filed and the case was committed to the Sessions Court being Sessions Case No.144/06. The prosecution in order to prove the guilt of the accused examined in all 11 witnesses by leading oral evidence whose details are mentioned at para 8 of the judgment of the learned Sessions Judge. The prosecution also produced 23 documentary evidences, the details of which are mentioned at para 9 of the judgment. The learned Sessions Judge thereafter recorded statement of the accused under section 313 of the Cr.P.C. wherein the accused denied the evidence against him and in the further statement, he had stated that he had love affair with Lila and he wanted to marry her. But the complaint is filed on account of instigation made by her Dadi and her mother. He also stated that Saiyed did not register the complaint filed by her. Thereafter, the learned Sessions Judge heard the prosecution and the defence and found the accused guilty of the offence charged under sections 363, 366 and 376 of IPC. 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.
4. The learned counsel appearing for the appellant raised the only contention that even if it is considered that the case was proved for the charge of offence, 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 facts have come on record by way of medical evidence of Doctor that there was no resistance by the victim at the time when the rape was committed by the accused with the victim. It was submitted that there was no injury marks found on the body of the victim as per the medical evidence and keeping in view the said aspect, even if it was believed that the victim was aged less than 16 years, the punishment imposed under section 376 of the IPC of 10 years RI may be interfered with by this Court. It was submitted by the learned counsel for the appellant that by now the accused has undergone the sentence of more than 5 years and therefore, the appellant is restricting the case only on the aspect of sentence.
5. The learned APP while supporting the judgment of the learned Sessions Judge on the aspect of sentence under section 376 of IPC, 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.
6. Similar aspect came to be considered by this Court in the earlier decision of this Court in Criminal Appeal No.1872/06 decided on 12.12.2011 and it was observed at paragraph 7 as under:
“7. 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.”
7. If the facts of the present case are examined in light of the above referred legal position, it appears that as per the evidence of Doctor Vishal, P.W.1, there were no injury marks whatsoever found for resistance on the body of the victim or any private parts of her. In the deposition of the victim herself, Lilaben, p.w.2, in the cross examination she has admitted that after the incident, Hitesh had gone for taking bath in the bathroom by closing the door of the bathroom from inside. The aforesaid shows that she had all opportunity to run away but no attempt was made by her to run away. Further, when she came out from the hotel, she has not complained to anybody nor any attempt is made by her to run away. If the evidence of the victim is considered with the evidence of p.w.9, hotel manager Javed Bashirmahmad, exhibit 35, he did not find anything unusual in the behavior of the victim even after the incident when they came out from the room.
8. In our view, even if it is considered that the age of the victim was less than 16 years which may constitute 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 requires to be interfered with to that extent.
9. Under the circumstances, while maintaining the CR.A/198/2007 10/10 JUDGMENT 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 for imposition of the fine of Rs.1500 and 10 months RI in default of fine does not deserve to be interfered with.
10. 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.144/06 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.)