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CR.A/1761/2006 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1761 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
RANJITBHAI
BHUPATBHAI KHAVAD - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
=========================================
Appearance
:
MS
SHACHI G MATHUR for Appellant(s) : 1,MR KALPESH L NADIA for
Appellant(s) : 1,MR PUNAM G GADHVI for Appellant(s) : 1,
MR HL
JANI ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 17/01/2011
ORAL
JUDGMENT
1. The
present appellant has preferred this Appeal under Section 374(2) of
the Code of Criminal Procedure against the judgment and order of
conviction and sentence dated 30.6.2006 passed by the learned
Presiding Officer, 2nd Fast Track Court, Rajkot in
Sessions Case No.20 of 2006, whereby the learned Sessions Judge has
convicted the appellant under Sections 363 and 114 of the Indian
Penal Code and sentenced the appellant to undergo R.I. of five years
and to pay a fine of Rs.2,000/-, in default, to undergo further R.I.
for one month. The learned Sessions Judge was further pleased to
convict and sentence the accused for the offence punishable under
Section 366 read with Section 114 of the Indian Penal Code, to
undergo R.I. for 7 years and fine of Rs.3000/-, in default, further
R.I. for two months.
The
brief facts of the prosecution case are as under:
2. The
allegations levelled against the accused are that the accused –
present appellant along with other accused have misguided the
daughter of the complainant who was about 16 years and the accused
No.1 gave fake promise for marriage. The main accused kept the
daughter of the complainant with him for about 18 days and raped the
daughter of the complainant and present appellant along with other
accused helped the accused No.1 in commission of the offence.
Therefore, the complaint for the offences punishable under Sections
363, 366, 376 and 114 of the Indian Penal Code being complaint C.R.
No.I – 120 of 2005 before Jasdan Police Station against the
appellant along with other co accused.
3. Thereafter,
statements of the witnesses were recorded, panchnama was drawn and
accused were arrested. Against the appellant, charge-sheet was filed
before the learned Judicial Magistrate First Class, Jasdan.
Thereafter, as the case was exclusively triable by the Court of
Sessions, the learned Judicial Magistrate First Class has committed
the case to the Court of Sessions, which was numbered as Sessions
Case No.20 of 2006.
4. Thereafter,
the charge was framed against the appellant. The appellant and other
accused pleaded not guilty and claimed to be tried.
5. To
prove the case against the appellant, the prosecution has produced
documentary evidence and also examined 8 witnesses before the trial
Court.
6. Thereafter,
after examining the witnesses, further statement of the appellant –
accused under Section 313 of the Code of Criminal Procedure was
recorded in which the appellant – accused has denied the case
of the prosecution.
7. After
considering the oral as well as documentary evidence and after
hearing the parties, learned Presiding officer, 2nd Fast
Track Court, Rajkot vide judgment and order dated 30.6.2006 held the
appellant – accused guilty to the charge levelled against him
under Sections 363, 366 and 114 of the Indian Penal Code, as stated
above.
8. Feeling
aggrieved and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned Presiding Officer, 2nd
Fast Track Court, Rajkot, the present appellant has preferred this
appeal.
9. Learned
advocate Mr. Gadhvi appearing on behalf of the appellant submitted
that there were several contradictions between the documentary
evidence and oral evidence led by the witnesses and they were never
proved. Even though the learned Sessions Judge held guilty the
appellant for the offence alleged and convicted the appellant.
Therefore, the order impugned is required to be quashed and set aside
by allowing the appeal.
10. The
learned APP Mr. H.L. Jani for the State strongly opposed the
submissions made by the learned advocate for the appellant. It was
contended by learned APP that the judgment and order of the Sessions
Court is just and proper and as per the provisions of law; the
Sessions Court has properly considered the evidence led by the
prosecution and looking to the provisions of law itself it is
established that the prosecution has proved the whole ingredients of
the evidence against the present appellant. Learned APP has also
taken this Court through the oral as well as the entire documentary
evidence.
11. I
have perused the judgment and order and reasons given by the learned
Judge also. I have perused the record of the case and also considered
the submissions made by the learned advocates for the parties. After
the considering the evidence, the learned Sessions Judge has held the
appellant guilty of the offences and sentenced the appellant. The
appellant was ordered to undergo R.I. as stated above.
12. Learned
advocate Mr. Gadhvi for the appellant argued that he is not arguing
this matter on merits, but arguing only on the quantum of punishment.
He submitted that the date of the arrest of the appellant is
6.11.2005. Therefore, looking to the period undergone is one year,
two months and 49 days, the appellant has passed in jail and
therefore, his undergone sentence may be treated as sentence. He also
admitted that the present appellant is involved in the serious
offence, but considering the period undergone by him and he is not
main accused, hence, this appeal is required to be considered on the
quantum of punishment.
13. I
have considered his submission about the quantum of punishment and
the appellant is in jail from 6.11.2005 and, therefore, looking to
the quantum of punishment, the sentence undergone by the appellant is
required to be considered as sentence. Learned APP Mr. Jani has no
objection if the undergone period may be treated as sentence. He has
produced jail report of the appellant, which is taken on record. Even
the sentence which is imposed upon appellant is very harsh in nature
for the offences under Section 363, 366 and 114 of the Indian Penal
Code.
14. In
view of the above, the Appeal is partly allowed. The judgment
and order dated 30.6.2006 passed by the learned Presiding Officer,
2nd Fast Track Court, Rajkot in Sessions Case No.20 of
2006, is hereby modified to the extent that the sentence, which the
appellant has undergone shall be treated as sentence. Rest of the
judgment of the learned Sessions Court shall remain unaltered. Now,
the appellant is on bail, therefore, bail bonds, if any, shall stands
cancelled. R & P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED,
J.)
ynvyas
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