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CR.A/593/2007 4/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 593 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
SHRI
VIPULKUMAR CHANDULAL TRIVEDI - Appellant(s)
Versus
THE
STATE OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
MR PRAJAPATI for
Appellant(s) : 1,
MR HH PARIKH Ld. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 06/10/2010
ORAL
JUDGMENT
1. The
present appellant has preferred this appeal under sec. 374(2) of the
Code of Criminal Procedure, against the judgment and order of
conviction and sentence dated 21.11.2006 passed by the learned Addl.
Sessions Judge, FTC No. 7, camp at Modasa in Sessions Case No.
63/2006 whereby, the learned Judge has convicted the appellant under
sec. 363 of IPC and sentenced to undergo R/I for two years and to pay
a fine of Rs. 1000/-, in default, to undergo S/I for three months.
The appellant is also convicted under sec. 366 of IPC and sentenced
to undergo R/I for a period of 3 years and to pay a fine of Rs
1000/-, in default, to undergo further S/I for three months. The
appellant is also convicted under sec. 376 of IPC and sentenced to
undergo R/I for 7 years, and to pay a fine of Rs. 1000/-, in default,
to undergo S/I for three months, which is impugned in this appeal.
2. The
brief facts of the prosecution case is as under:
3. That
on 28.12.2005, at about 20.00 hours, when the prosecutrix had gone to
answer nature’s call, at that time, the appellant and co-accused have
caught hold of the prosecutrix and after beating and threatening her,
abducted her and committed rape on her.
4. Therefore
a complaint came to be filed by the complainant. The panchnama of the
clothes put on by the victim was prepared in the presence of panch
witness and statements of prosecutrix and other witnesses were
recorded and on completion of the investigation, charge-sheet was
filed in the Court of learned JMFC, Modasa. Thereafter, as the case
was exclusively triable by the Court of Sessions, the learned
Magistrate has committed the case to the Court of Sessions, which was
given number as Sessions Case No. 63/2006.
5. Thereafter,
the charge was framed at Ex. 4 against the appellant. The appellant
accused has pleaded not guilty and claimed to be tried.
6. In
order to bring the home the charge levelled against the appellant-
accused, the prosecution has examined the witnesses and also produced
documentary evidence before the trial Court.
7. Thereafter,
after examining the witnesses, further statement of the
appellant-accused under sec. 313 of CrPC was recorded in which the
appellant-accused has denied the case of the prosecution.
8. After
considering the oral as well as documentary evidence and after
hearing the parties, learned Judge vide impugned judgment and order
dated 21.11.2006 held the appellant accused guilty to the charge
levelled against him under sec. 363, 366, 376, 323, 504, 506(2) and
114 of IPC and convicted and sentenced the appellant accused, as
stated above.
9. Being
aggrieved by and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned Addl. Sessions Judge,
FTC No. 7, camp at Modasa, the present appellant has preferred this
appeal.
10. Heard
Mr. MR Prajapati learned advocate for the appellant and Mr HH Parikh
learned APP for the respondent-State.
11. Mr
MR Prajapati learned advocate appearing for the appellant has fairly
admitted that he is only arguing the matter on the point of quantum
of punishment and not arguing the matter on merits. He has also
contended that no doubt the age of the prosecutrix was only 13 years
at the time of incident and the prosecution has also proved its case
beyond reasonable doubt, however, he request this Court to reduce the
sentence because the present appellant is suffering from HIV (AIDS)
and TB, so that he can pass last days of his life at home. He has
further submitted with folded hands that the wife of the present
appellant is also suffering from HIV (AIDS) and therefore, he is
arguing the matter on only the quantum of punishment only on the
ground of mercy.
12. No
doubt, the learned APP Mr Parikh has opposed this appeal and produced
the jail remarks and contended that the appellant had undergone the
sentence of 4 years and two months. Mr Parikh learned APP has further
contended that looking to the age of the prosecutrix, this appeal
requires to be dismissed.
13. I
have gone through the oral as well as documentary evidence produced
on the record. I have read the oral evidence of prosecution
witness-complainant and also perused the charge framed against the
appellant. It is true that the present appellant is patient of HIV
(AIDS) and TB and has also taken treatment from the Jail and the
papers of medical treatment are produced through jail. It appears
from the oral evidence of prosecution witnesses as well as medical
evidence, it is not necessary to observe that the same are required
to be considered on merits because the learned advocate for the
appellant is not arguing the matter on merits but simply on the
mercy ground he has prayed this Court to reduce the sentence, which
is required to be considered in the interest of justice. It is to be
noted that so far as the religious belief is concerned, it is true
that every sin fastened to the neck of the person. The present
appellant has committed the offence under sec. 376 of IPC with minor
girl aged only 13 years, and now the appellant is a patient of HIV
and TB, not only that, his wife is also suffering from HIV. No doubt,
the present appellant is convicted by the trial court and also by the
nature. In that view of the matter, the sentence requires to be
reduced in the interest of justice.
16. In
the result, this appeal is partly allowed.. The impugned judgment and
order of conviction passed by the learned Addl. Sessions Judge, camp
at Modasa in Sessions Case No. 63/2006 is hereby confirmed. However,
the order of sentence sentencing the appellant-accused to undergo R/I
for 7 years for the offence under sec. 376 of IPC is hereby reduced
to the extent that instead the appellant-accused is hereby sentenced
to undergo R/I for 5 ? years. Rest of the impugned judgment and
order of conviction and sentence is confirmed. R & P to be sent
back to the trial Court.
(Z.K.SAIYED,
J.)
mandora/
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