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CR.A/2202/2008 4/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2202 of 2008
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 ?
=========================================================
KESHUBHAI
RAMJIBHAI PATEL - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
VIRAT G POPAT for Appellant(s) : 1,
MR HH PARIKH Ld. APP for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 15/09/2010
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 7.7.2008 passed by the learned Addl.
Sessions Judge & Presiding Officer, Fast Track Court no. 5,
Gondal at Dhoraji in Sessions Case No.55/2007, whereby, the learned
Judge has convicted the appellant under sec. 376 of IPC and sentenced
to undergo R/I for 7 years and to pay a fine of Rs. 100/-, in
default, to undergo further S/I for one year. The appellant is also
convicted under sec. 506(2) of IPC and sentenced to undergo R/I for
a period of one year and to pay a fine of Rs 50/-, in default, to
undergo further S/I for three months, which is impugned in this
appeal. All the sentences were ordered to be run concurrently.
2. The
brief facts of the prosecution case is as under:
3. That
on 9.2.1996, at about 1.00 hours in the night, the appellant-accused
has committed rape on the prosecutrix by showing knife and also
threatened her to kill if she informs about the rape committed by
the appellant, to anybody.
4. Therefore
a complaint came to be filed by the prosecutrix. The panchnama of the
clothes put on by the victim was prepared in the presence of panch
witness and statements of other witnesses were recorded and on
completion of the investigation, charge-sheet was filed in the Court
of learned Judicial Magistrate First Class, Dhoraji. 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.55/2007.
5. Thereafter,
the charge was framed at Ex. 19 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 7.7.2008 held the appellant accused guilty to the charge
levelled against him under sec. 376 and 506(2) 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,
Dhoraji, the present appellant has preferred this appeal.
10. Heard
Mr. Virat Popat learned advocate for the appellant and Mr HH Parikh
learned APP for the respondent-State.
11. Mr.
Virat Popat learned advocate appearing for the appellant has fairly
admitted that he is not arguing the matter on merits, but he is
arguing the matter only on the point of quantum of punishment. He has
read the charge and the judgment and order of conviction and sentence
and contended that though it was established before the learned
Judge that there was a love affair between the appellant and
prosecutrix and both were major, however, the same was not considered
by the learned Judge and, therefore, question regarding consent was
also not considered by the learned Judge. Mr Popat has further
contended that from the oral evidence of prosecutrix, it was also
established beyond reasonable doubt that there was a consent of the
prosecutrix. From the medical evidence, not a single iota of evidence
with regard to any injury was found on the body of prosecutrix. Mr
Popat has also contended that FSL report is also in favour of the
appellant. Mr. Popat has submitted that the appellant has already
undergone the sentence of 2 years and 4 months and, therefore,
sentence imposed upon the appellant is very harsh and, the same may
be reduced.
12. Learned
APP Mr. Parikh appearing for the State has contended that this is not
a case of consent. He has drawn my attention to the circumstantial
evidence and argued that before the learned Judge it was established
beyond reasonable doubt that the appellant has committed serious
offence under sec. 376 and 506(2) of IPC. Mr Parikh has also
submitted that the evidence of prosecutrix is sufficient and no
corroboration is necessary to prove the case and, therefore, this
appeal may be dismissed.
13. I
have considered the submissions made by the learned advocates
appearing for the parties and perused the papers. I have also gone
through the oral as well as documentary evidence produced on the
record. I have read the oral evidence of prosecutrix. No doubt, in
the cross-examination, the defence has tried to establish that there
was love affair between the appellant and prosecutrix and the age of
the appellant at the time of incident was only 22 years and he was
doing labour work and having two children and he is the only bread
winner in the family . In that view of the matter, I am of the
opinion that the sentence imposed upon the appellant is very harsh
and the same requires to be reduced. This Court, without entering
into the merits of the matter, the sentence to undergo R/I for 7
years imposed upon the appellant by the learned Addl. Sessions Judge
is requires to be reduced.
14. In
the result, this appeal is partly allowed. The impugned judgment and
order of conviction dated 7.7.2008 passed in Sessions Case No.
55/2008 by the learned Addl. Sessions Judge & Presiding Officer,
Fast Track Court No. 5, Gondal at Dhoraji convicting the
appellant-accused under sec. 376 and 506(2) of IPC 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 3 years and
6 months. Rest of the impugned judgment and order of conviction and
sentence is hereby confirmed.
(Z.K.
SAIYED, J)
mandora/
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