(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. Being aggrieved and dissatisfied by the judgment and order dated 1.7.1989 passed by the learned Assistant Sessions Judge, Kheda at Nadiad in Sessions Case No. 247 of 1988 for offence punishable under section 376 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC"), this Appeal under section 377 of the Criminal Procedure Code, 1973 has been filed by the State of Gujarat for enhancement of the sentence imposed under section 377 of the Criminal Procedure Code, 1973.
2. The facts of the case in brief are that the respondent accused was charge sheeted for offence under section 376, 323 and 506(2) of Indian Penal Code by Virpur police station, Taluka Balashinor. It is the case of the prosecution that on 23.7.1989 at about 7.00 p.m. the respondent accused asked the victim to bring beedis for him from the shop and also told her to take One Rupee for the same from the house. Under that pretext, the victim, a minor girl aged less than 13 years was trapped in the house and she was beaten by the respondent and committed rape on her. It is the further case of the prosecution that the accused is a neighbour and relative of the victim. According to the prosecution, the victim was beaten up by sticks and was threatened to cause death if the incident in question is reported to any one. Thereafter the accused fled the scene. It is further the case of the prosecution that the victim was bleeding profusely and due to pain she was screaming and on hearing the screaming, her mother rushed to the place of incident. She reported the incident to the father of the victim. As it was raining in the evening and transport facility was not available during the night hours, they could not report the incident to the police on the same day. The next day morning, father of the victim went to the police patel and he was told to report the same to the police station. The victim was given preliminary treatment at Virpur Government Hospital and was sent to Balashinor Hospital. As the doctors of Balashinor hospital refused to give treatment, the victim was shifted to Nadiad Hospital. The complaint was lodged under sections 376, 323, 506(2) of IPC, investigation was carried out and the accused was charge sheeted and the case was committed to the Sessions Court at Nadiad. Case was registered as Sessions Case No. 247 of 1988.
3. During the trial, the accused pleaded not guilty to the charges and was tried for the above referred offences. After recording the evidence of witnesses and considering the records and papers of the case, the learned Assistant Judge convicted the accused for the offences under Section 376 of IPC but acquitted the respondent accused of the charge of offences under sections 323, 506 (2) of IPC. The accused was sentenced to undergo Rigorous Imprisonment for a period of four years for the offence under section 376 of IPC. The accused was given set off for the sentence already undergone and for the rest of the sentence, it was ordered to undergo Rigorous Imprisonment by judgment and order dated 1.7.1989.
5. To prove the case, after framing the charge, following prosecution witnesses were examined:
Sr.No.Name of witnesses Exh.No.
7. PW 7 Laxmanbhai Lalabhai 33
8. PW 8 Ratnabhai Sankalbhai, Panch 34
9. PW 9 Kalubhai Amrabhai, Panch 36
10. PW10 Fulabhai Chaturbhai, Panch 37
11. PW11 Chandrakant B Patel, PSO 39
5.1. Besides the aforesaid oral evidence, documentary evidence such as case papers of the Hospital Exh.16, Doctor's certificate, Exhs.9,17 and 22, FSL report Exh.12, Serological report Exh.13, complaint Exh.31, panchnama of scene of offence, Exh.8, physical condition report of the victim Exh.38 etc. were also taken into consideration by the learned Sessions judge.
6. After examining the prosecution witnesses, the learned Assistant Sessions Judge has recorded statements of the accused under section 313 of the Code of Criminal Procedure in which it is stated by the accused that a false case is filed against him. After hearing the arguments of both the sides and after appreciating the evidence on record, the learned Assistant Sessions Judge has come to the conclusion that the case against the accused had been proved. The learned Judge also observed in the concluding part of the judgment that the fact that the accused is from a poor family, sympathy should be shown to the accused is not a good ground to be considered but the learned Judge has considered that the parties are the relatives and they are not in talking terms and enmity prevails between them as well as considering the time as well as the place of the incident and also considering the fact that the complaint was filed on the next day, the trial court thought it fit to convict the accused for offence under section 376 of IPC and sentenced to suffer Rigorous Imprisonment for four years. However, he is acquitted for the offences under section 323 and 506 (2) of IPC.
7. The learned APP submitted that looking to the gravity of the offence committed, the order of sentence is inadequate and insufficient and the learned Sessions Judge ought to have considered the law that under the provisions of section 376 a person who commits rape on a woman shall be punished with a term which shall not be less than seven years but which may be for life or for a term which may be extended to ten years. The learned APP submitted that the learned Judge has failed in giving any specific reasons to impose imprisonment for a term of less than 7 years. The learned APP further submitted that the learned Judge has also failed in considering the fact that the victim is a minor girl aged 13 years who was severely beaten up and raped. It is further submitted by the learned APP that the learned Judge ought to have considered the personal enmity between the family of the victim and the accused and the poverty of the respondent- accused and his family cannot be grounds to take a lenient view by imposing lesser punishment in a case where offence is under section 376. He further submitted that the learned Sessions Judge has failed to apply mind and hence committed patent error in awarding lesser sentence than the minimum sentence prescribed under the law. The learned APP finally submitted that looking to the aforesaid grounds, this appeal be allowed and appropriate order of sentence be passed in accordance with law.
8. On perusal of the impugned judgment and order, we find that the learned Assistant Sessions Judge has taken into consideration the oral as well as documentary evidence led before him. As mentioned earlier, the present Criminal Appeal for enhancement of the sentence has been filed by the State of Gujarat against the order of sentence passed on 1.7.1989 by the learned Assistant Sessions Judge, Kheda at Nadiad in Sessions Case No. 247 of 1988 under section 377 of the Criminal Procedure Code. So far as imposing of sentence is concerned, we are quite aware that the Court has no discretion in the matter of awarding sentence when minimum sentence is prescribed. Nonetheless, Parliament was not oblivious of certain very exceptional situations and hence to meet such extremely rare contingencies it made a departure from the said strict rule by conferring a discretion on court subject to two conditions. One is that there should be "adequate and special reasons" and the other is that such reasons should be mentioned in the judgment.
8.1. In order to exercise the discretion to award the less than minimum sentence, the statutory requirement is that the court has to record "adequate and special reasons" in the judgment and not fanciful reasons, which willl justify imposing the sentence less than the minimum limit prescribed under the law. What is adequate and special would depend upon several factors and no strait-jacket formula can be indicated.
9. We have carefully perused the entire documents along with the depositions forthcoming on the record. We cannot simply ignore the fact that the present accused and the complainant are close relatives. It is also an admitted fact that the accused and the complainant are next door neighbours and there was enmity between them relating to land disputes and their relations were not cordial prior to the incident. It is very important to note that it has come on the record that the family of the accused consists of five brothers including the accused and all were residing together in a joint family. Out of the five brothers, three brothers are married and two brothers are unmarried. The time of the incident is shown as approximately 7.00 p.m. The accused and the complainant are residing in a village. It goes without saying that at 7.00 p.m. in a joint family consisting of eight members, even if it is presumed that all the members were out of the house for the whole day, they would have come back to the house by evening. It is also admitted by mother of the prosecutrix, PW 6, Kaliben Laxmanbhai at Exh. 32 that normally wives of the brothers of the accused or one or the other person used to remain there in the house of the accused. If that may be the position, then the story put up by the prosecutrix that on the day of the incident i.e. on 23.7.1989 at about 7.00 p.m. the accused asked the victim to bring beedis from the shop for him and thereafter the accused caught hold and taken her into the house, prima facie, creates doubts in the mind of the court for which no cogent, genuine and reliable evidence has been forthcoming on the record. Along with this, non-cordial relations between the family of the accused and the complainant also requires to be considered. In the instant case, if certain contradictions are seen in light of what has been observed above, the accused may get benefit of doubt but the accused has not filed or challenged the order under question. We are not entering into the said aspect of the case in this appeal. However, under the circumstances referred above, we find that the reasons given by the trial court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the trial court has committed any error in awarding lesser sentence than the minimum sentence prescribed under the law. The observations made by the learned Assistant Sessions Judge are in its right perspectives and has rightly awarded sentence less than the minimum limit prescribed. We are in complete agreement with the same and we do not interfere with the same.
10. In the result, this appeal fails and is accordingly dismissed. The impugned judgment and order dated 1.7.1989 passed by the learned Assistant Sessions Judge, Nadiad in Sessions Case No. 247 of 1988 are confirmed. Bail Bond, if any, stands cancelled.
The office shall send back the Records & Proceedings to the trial court forthwith, after following the due procedure.
[RAVI R TRIPATHI, J.] msp [G B SHAH, J.]