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CR.A/188/2009 5/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 188 of 2009
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 ?
=========================================================
BHAGIRATH
@ BHATO PRAVINSIN BALVANTSINH VAGHELA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
RJ GOSWAMI for
Appellant(s) : 1,MRDINESHBPATEL for Appellant(s) : 1,
MR HH PARIKH
Ld. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 30/08/2010
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 11.12.2008 passed by the learned
Addl. Sessions Judge, Fast Track Court No. 6, Ahmedabad (Rural) at
Mirzapur, Ahmedabad in Sessions Case No. 97/2007, whereby, the
learned Judge has convicted the appellant under sec. 363 and
sentenced to undergo imprisonment of three years R/I and to pay a
fine of Rs. 300/, in default, to undergo further S/I for two months.
The appellant is also convicted under sec.366 of IPC and sentenced
to undergo R/I for a period of four years and to pay a fine of Rs
400/- in default, to undergo further S/I for four 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 defualt,
to undergo S/I for five months, which is impugned in this appeal.
The learned Judge has also directed that all the sentences to run
concurrently.
2. The
brief facts of the prosecution case is as under:
3. The
case of the prosecution, in nut-shell is that on 18.3.2007 between
2.30am to 5.30am in the night, the appellant has taken away minor
daughter Srusti from the lawful custody of the complainant from his
residence as also Indica Car bearing registration No. GJ-9-H-1922
with an intention to commit rape with her at Morbi and Dharampur, and
the appellant has committed rape on minor daughter Shrushti at Morbi
and dharampur.
4. Therefore
a complaint came to be filed by the complainant before the Ghatlodia
Police Station. The panchnama of the clothes put on by the victim on
18.3.2007 was prepared in the presence of panch witness and
statements of the witnesses were recorded and on completion of the
investigation, charge-sheet was filed in the Court of learned
Judicial Magistrate First Class, Ahmedabad. 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. 97/2007.
5. Thereafter,
the charge was framed at Ex. 3 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 following witnesses
PW-1
Dr. Upendra Gopalbhai Patel, Ex. 8
PW-2
Fatesinh Umedsinh Parmar Ex. 17
PW-3
Chetan Kaliyabhai Ahir Ex. 19
PW-4
Arvindsinh Dipsinh Rathod Ex. 21
PW-5
Shrikrishna Raghuvirdas Menon Ex. 25
PW-6
Hiteshbhai Rameshbhai Ex. 27
PW-7
Dr. Babubhai Somabhai Parmar Ex. 30
PW-8
Srusti A Rathod Ex. 35
PW-9
Sahebkhan Jivankhan PathanEx. 36
PW-10Devisinh
Ramjibhai Makwana PSI Ex. 40
PW-11
Jayendrasinh Kanaksinh Zala, PI, Ex. 41
During
the course of the trial, the prosecution has also produced
documentary evidence before the trial Court, which are as under.
Complaint
Ex. 22
Birth
certificate of victim Ex. 23
RC
Book of Indica car Ex. 24
Panchnama
of scene of offence Ex. 26
Panchnama
of person of accused Ex. 19
Medical
certificate of victim Ex. 10
Medical
certificate of accused Ex. 9
Medical
report about age of victim Ex. 31
Copy
of register of the Guest House Ex. 29
Medical
case papers of accused Ex. 11
Yadi
Ex. 12
Letter
Ex. 13
Case
paper of victim Ex. 14
Yadi
for medical Ex. 15
Letter
ex. 16
Case
papers Ex. 31
History
papers Ex. 32
Yadi
Ex. 37
Arrest
memo Ex. 38
Yadi
to add sec. 376 of IPC Ex. 42
Copy
of register of Guest House Ex. 28
Copy
of licence Ex. 29
Yadi
to FSL ex. 43
Receipt
of FSL Ex. 44
Letter
of FSL Ex. 45
Report
of FSL Ex. 46
Report
of Serological Ex. 47
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 11.12.2008 held the appellant accused guilty to the charge
levelled against him under sec. 363, 366 and 376 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,
Ahmedabad, the present appellant has preferred this appeal.
10. Heard
Mr. RJ Goswami learned advocate for the appellant and Mr HH Parikh
learned APP for the respondent-State.
11. Mr.
Goswami learned advocate for the appellant has contended that it is
established beyond reasonable doubt that there was a love between the
appellant and prosecutrix. He has also shown the birth certificate of
the prosecutrix. No doubt, the prosecutrix is blow 16 years, but
looking to the provisions of sec. 363, the prosecution has
established its case beyond reasonable doubt and, therefore, the
learned Judge has imposed the punishment upon the present appellant,
as stated above. Mr Goswami has also contended that from the medical
papers, it appears that there was a consent of the prosecutrix.
However, looking to the provisions of sec. 376 of IPC, the present
prosecutrix was below 16 years, therefore, Mr. Goswami has submitted
that he is not arguing the matter on merits, but he is arguing the
matter only on the quantum of punishment. Mr. Goswami has, therefore,
contended that looking to the age of the present appellant, the
conviction under sec. 376 of IPC for seven years is very harsh and
requires to be reduced.
12. As
against this, learned APP Mr. HH Parikh appearing for the State has
read the oral as well as documentary evidence produced on record and
contended that looking to the age of the prosecutrix, who was below
13 years at the time of incident, she does not know anything
regarding her future and for the purpose to protect the society, the
impugned judgment and order of conviction and sentence passed by the
learned Addl. Sessions Judge requires to be confirmed.
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 other material witnesses and also perused the
charge framed against the appellant. From the cross-examination of
the prosecutrix, it is prima-facie established that there was a love
affair between the prosecutrix and the present appellant. From the
conduct of the prosecutrix, it is clear that she has moved with the
present appellant at different places and also visited the hotel, no
doubt, physical relation has been established through medical papers.
The learned Addl. Sessions Judge has convicted the appellant after
considering the oral evidence of victim as well as medical expert. I
have gone through the reasons given by the learned Addl. Sessions
Judge. However, I am of the opinion that when the learned advocate
appearing for the appellant is not arguing the matter on merits but
agruing the matter only for the purpose of quantum of punishment,
then, in my opinion, the conviction under sec. 376 of IPC imposed by
the learned Addl. Sessions Judge upon the appellant to undergo 7
years R/I is required to be reduced to 5 years.
14. In
the result, this appeal is partly allowed. The impugned judgment and
order of conviction and sentence passed by the learned Addl. Sessions
Judge, Fast Track Court No. 6, Ahmedabad (Rural) at Mirzapur,
Ahmedabad in Sessions Case No. 97/2007 is hereby modified to the
extent that the conviction under sec. 376 of IPC imposed upon the
appellant to undergo R/I for 7 years is hereby reduced to 5 years
R/I. Rest of the impugned judgment and order shall remain unaltered.
R & P to be sent back to the trial court forthwith.
(Z.K.SAIYED,
J.)
mandora/
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