(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgment and order passed by the learned Sessions Judge in Sessions Case No.26/07 whereby the appellant-accused has been convicted for the offence punishable under section 376 and sentence has been imposed upon him of 10 years' R.I., with the fine of Rs.3,000/- and two months' R.I. for default in payment of fine. The accused has also been convicted for the offence punishable under Section 366 of IPC and the sentence has been imposed upon him of 7 years' R.I., with the fine of Rs.2,000/- and additional punishment of one month's R.I. for default in payment of fine. The accused has also been convicted for the offence punishable under Section 363 of IPC and sentence has been imposed upon him of 5 years' R.I., with the fine of Rs.2,000/-, and additional punishment of one month's R.I., for default in payment of fine.
2. As per the prosecution case, the complaint was filed by the father of the victim, Mr.Shankerji Kayurji Marwadi - PW-1, Exh. 14, on 9.6.2006, stating that on 4.5.2006, in the morning, when his son Naresh had gone for service and his another son Dinesh with his wife had gone for giving invitation of the marriage of his (complainant's) daughter Sonal and the complainant had gone for labour work, his wife Laxmiben and his daughter were at the residence. At about 7 O'clock when the complainant came back from work, his wife Laxmiben informed the complainant that Sonal had gone out stating that she was going for buying vegetables and she had not returned and on further enquiries with the relatives, Sonal was not found. Thereafter, upon further enquiries, it was learnt that one Vishnu Vijaysinh Rajput was also not available at his residence, who was staying near the house of the complainant and when he enquired about Vishnu from his parents, they stated that they were not aware about the same and consequently it was learnt by the complainant that Vishnu had seduced his daughter and eloped her and has kidnapped her. Thereafter, the application was made for further inquiry, but between around 11 a.m. and 12 noon, his daughter Sonal came back to the residence and started crying and upon further enquiry, she narrated that Vishnu had taken her in rickshaw and thereafter they had stayed at different places and both had physical relations and, therefore, the complaint was filed for the offence of kidnapping and of committing rape.
3. The police investigated into the complaint and charge-sheet was filed and the case was ultimately committed to the learned Sessions Judge being Sessions Case No.26/2007. The prosecution, in order to prove the guilt of the accused produced oral evidence of eight witnesses, whose details are mentioned by the Sessions Judge at paragraph 4 of the judgement. The prosecution also produced documentary evidences, details of which are at paragraph 5 of the judgement. 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, but he also stated that the victim by showing the bottle of poison compelled him to go together, failing which she had threatened to consume poison. The learned Sessions Judge thereafter heard the prosecution as well as the defence and ultimately found the accused guilty for the offence punishable under Sections 363, 366 and 376 of IPC. The learned Sessions Judge heard the accused on the aspect of sentence and imposed the sentences as referred to herein above. Under these circumstances, the present appeal before this Court.
4. The learned Counsel for the appellant – original accused, Mr.Barot raised the only contention that even if it is considered that the case was proved against the accused for the offence charged, 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 there was no physical relation by the victim with the accused with consent. He submitted that as such the age of the victim, as to whether she was less than 16 years or not, was doubtful in view of the facts and circumstances. In his submission, even if it is believed that the accused was of 15 years or more, but less than 16 years, the punishment imposed for the offence punishable under Section 376 of IPC for 10 years' R.I., deserves to be interfered with by this Court. The learned Counsel relied upon the decision of this Court in Criminal Appeal No.880 of 2006 decided on 22.11.2011 in the case of Sanjaykumar Nanakprabhu Saroj (Pasi) v State of Gujarat and subsequently relied upon the decision in the case of Rajesh Gautambhai Meghval Solanki
v. State of Gujarat, in Criminal Appeal No.1872 of 2006 dated 22.12.2011.
5. The learned APP, while supporting the judgement 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 for the offence
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 on record. In the said decision this Court observed at paragraphs 4 to 9 as under:-
“4. The learned Sessions Judge thereafter, heard the matter on the aspect of sentence and ultimately, imposed 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 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 ossification test was also conducted and the evidence had come on record by the testimony of Dr. Bhairavi, p.w.6. It was further 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 aspects, 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, she is restricting the case only on the aspect of sentence.
6. 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.
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.”
8. 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 5, exhibit 18, has clearly stated that when he had examined the prosecutrix, the medical history was given by her and in the medical history she had stated that the victim was knowing Rajesh since last 2 months staying nearby the area of Narayannagar and she was having love affair with him since last two months. She further stated that she had gone voluntarily with Rajesh on 01.09.2005 at 11.15 O' clock to Khervada from Ahmedabad in luxury bus and there they had stayed at the house of Rajubhai's brother for about 45 days. She had also stated that during the said period, she had physical relation with Rajesh two times and the police by arresting them had brought to Ellisbridge police station on 06.09.2005. The another aspect is that in the testimony of the said Doctor Gautambhai, p.w.5, it has further transpired that no injury marks were found on the body or private parts of the victim. Dr.Bhairavi was examined as p.w.6, exhibit 20. As per her testimony, in the ossification test, the age of victim was found as that of 16 to 18 years. The another relevant aspect is that the complainant himself had stated that his daughtervictim had love affair with the accused. In the crossexamination of the victim, who was examined as p.w.1, it has transpired that at no point of time, any attempt was made by her to shout or to knock the door or otherwise.
9. 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.”
7. If the facts of the present case are examined, it appears that as per the evidence of Dr. Alpesh Gordanbhai Gangani, PW-6, Exh.29, it has come on record that in the medical history narrated by the victim before the said doctor, that from 4.5.2006, the victim had gone with Vishnu in the bus and they had stayed at different places until the police arrested them on 3.6.2006. She also stated that during the said period, with the consent, both of them had intercourse four to five times. The another relevant aspect is that the doctor had examined the victim and in his testimony it has come out that there were no external injury marks on the body of the victim. In the evidence of the victim herself – PW-3, Exh. 14, in the cross-examination, she has admitted that she had love-affair with Vishnu. Further, she had also admitted that she did not like the boy with whom her engagement was made by her father.
8. In the evidence of I.O., Mr.Motbhai Parmar, PW-8, Exh.34, in the cross-examination, he has admitted that the victim had declared before him that the engagement was fixed by her father at other place and the marriage was not acceptable to her and she had a desire to marry with Vishnu after attaining certain age, but as she and the accused Vishnu were belonging to different communities, the engagement was not acceptable to her family members. The another relevant aspect is that even as per the evidence led by the prosecution, the victim and the accused had stayed at different places, including that on road, where they passed 3 to 4 days and at no point of time, even during night time in open area, the victim had made no attempt to run away.
9. 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 the relevance while imposing sentence. Keeping in view the facts of the case as referred to herein above, we find that appropriate sentence required to be imposed was 7 years' R.I., for the offence punishable under Section 376 of IPC and not 10 years' R.I., as imposed by the learned Sessions Judge. Therefore, it appears to us that the judgement and order passed by the learned Sessions Judge deserves to be interfered with to that extent.
10. So far as the sentence imposed for the other offences namely; punishable under Sections 363 and 366 of IPC are concerned, it is, in any case, not exceeding 7 (seven) years. Further, as all the sentences are to run concurrently, we find that no interference would be required, since the period of imprisonment would not exceed 7 (seven) years.
11. Under these 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 punishable under Section 376 of IPC by 7 (seven) years' R.I., in place of 10 (ten) years' R.I. as imposed by the learned Sessions Judge. The other part of sentence for imposition of fine of Rs.3,000/- and additional punishment of two months for the default in payment of fine does not deserve to be interfered with. The conviction of the accused for the offence punishable under Sections 363 and 366 of IPC and the sentence imposed also do not deserve to be interfered with.
12. In view of the aforesaid observations and discussions, the appeal is partly allowed. The impugned judgement and order of conviction passed by the learned Sessions Judge in Sessions Case No.26/07 for the offence under Section 363, Section 366 and Section 376 of IPC is hereby confirmed, but on the aspect of sentence, the judgement and order of the learned Sessions Judge is modified to the effect that the sentence for the offence punishable under Section 376 of IPC shall be of 7 years R.I., in place of 10 years of R.I. The other part of the sentence imposed by the learned Sessions Judge is not interfered with.
13. The appeal is disposed of accordingly.
(Jayant Patel, J.)
(Paresh Upadhyay, J.)
vinod