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CR.A/1152/2006 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1152 of 2006
For
Approval and Signature:
HONOURABLE Mr
.JUSTICE A. L. DAVE
HONOURABLE
Ms .JUSTICE H. N. DEVANI
=========================================
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 ?
=========================================
USMAN
ABDUL HAI HANS.
Versus
STATE
OF GUJARAT & Another.
=========================================
Appearance :
Mr
MM TIRMIZI with Ms KRUTI M SHAH for the Appellant.
Mr MG
NANAVATI, APP, for the
Respondent-State.
=========================================
CORAM
:
HONOURABLE
Mr JUSTICE A. L. DAVE
and
HONOURABLE
Ms JUSTICE H. N. DEVANI
Date
: 18/01/2010
ORAL
JUDGMENT
:-
1. The present
appeal arises out of a judgment and order rendered by Sessions Court,
Navsari, in Sessions Case No.29 of 2005, convicting the appellant for
the offences punishable under Sections 376 and 506(2) of the Indian
Penal Code and Sections 3(1)(10) and 12 of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant
is sentenced to undergo imprisonment for life in the said offences
and to pay a fine of Rs.1,50,000/- and, in default, to undergo
rigorous imprisonment for a further period of six months. The Trial
Court ordered that, if the appellant paid the fine, Rs.75,000/- will
be paid to the prosecutrix and the daughter conceived by her through
the coitus with the appellant.
2. On the last
occasion, when the matter was heard on 12th January, 2010,
learned Advocate for the appellant stated that he was instructed by
his client, the appellant, to request the Court to permit the
appellant a personal audience. This Court, therefore, directed the
jail authorities to keep the appellant present before us today and,
accordingly, the appellant is before us.
3. The
appellant has indicated to us directly and the learned Advocate, upon
instructions, states that the appellant does not want to challenge
the conviction. The prayer is only to reduce the substantive
sentence and in lieu thereof, enhance the fine and grant more
compensation to the victims, namely, the prosecutrix and her daughter
begotten through the incident. The appellant has indicated that he
is married and he has a wife and three minor children to support. He
also indicated that the prosecutrix is now married somewhere else and
is settled in her matrimonial home. Though meekly, it was submitted
that it was a case of a love affair and the appellant is engaged in
plying rickshaw and agricultural work.
4. We have
heard learned Additional Public Prosecutor, Mr. Nanavati, on the
question of sentence.
5. The
appellant is in jail since the date of his arrest, ie. about four
years and seven months. The law prescribes minimum imprisonment for
a period of seven years for the offence for which the appellant is
convicted. What is awarded by the Trial Court is the maximum
punishment. The case, in our view, does not fall within the category
of such an exceptionally grave case where maximum punishment would be
justified nor is the case such where the minimum prescribed can be
awarded. The appellant was 33 years old at the time of the incident
and was married. The prosecutrix was aged only 13 years at the time
of the incident. Under the circumstances, in our view, a balance
would be struck if the substantive sentence is reduced to rigorous
imprisonment for a period of 10 years with enhancement of fine from
Rs.1,50,000/- to Rs.3,00,000/-.
6. We have
dispensed with the procedure of issuing notice for enhancement of
fine in view of the fact that the appellant himself has volunteered
to pay more fine, leaving the quantum of enhancement to the
discretion of the Court.
7. The appeal,
therefore, would stand partly allowed. The conviction of the
appellant is confirmed. The appellant is sentenced to undergo
rigorous imprisonment for a period of ten years with a fine of
Rs.3,00,000/- (Rupees three lakhs). In default of payment of fine,
the appellant shall undergo further imprisonment for a period of four
years.
7.1 If the
appellant deposits the amount of fine, an amount of Rs.1,50,000/-
shall go to the daughter begotten by the prosecutrix through the
incident. We are informed that the daughter is with the mother. The
amount going to the share of the daughter shall be invested through
the mother as mother and natural guardian in a nationalized bank for
the period till the minor attains the age of 21 years. The
prosecutrix would, however, be entitled to withdraw periodical
interest that may accrue on that amount. The fixed deposit receipts
will be retained by the Nazir of the Sessions Court till the minor
attains the age of 21 years.
7.1.1 Out of
the fine deposited, an amount of Rs.1,00,000/- (one lakh) shall be
paid by way of compensation to the prosecutrix by a crossed account
payee cheque to be deposited in a nationalized bank by way of fixed
deposit for a period of five years. She would, however, be entitled
to draw periodical interest that may accrue thereon.
7.2 The
appellant-convict may be sent back to Central Prison, Vadodara.
Order accordingly.
[ A.
L. DAVE, J. ]
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