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CR.A/1104/2006 6/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1104 of 2006
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 ?
=========================================================
SHANUBHAI
RAMJIBHAI GARASIYA - Appellant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
MUKESH B DAVE for
Appellant(s) : 1,
MR HH PARIKH, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 27/09/2010
ORAL
JUDGMENT
The
original accused, present appellant has filed this Appeal against the
judgment and order of conviction and sentence passed by the learned
Sessions Judge, Gandhinagar in Sessions Case No.6 of 2006 for the
offences punishable under Section 376 of the Indian Penal Code. The
present appellant-accused has been convicted for the offence under
Section 376 of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for seven years and a fine of Rs.20,000=00. In
default of payment of fine, to suffer further simple imprisonment for
one year.
Short
facts of the prosecution case are that a complaint bearing I-CR
No.272-2005 was registered with the Gandhinagar Section-21 Police
Station on 24.10.2005 for the offence punishable under Section 376 of
the Indian Penal Code. It is the say of the prosecution that the
complainant Devikaben Lasubhai Garasiya was staying with her husband
and family members in a Government premises at Gandhinagar as some
repairing work was going on in the said premises. Prior to 25 days of
the date of filing of the complaint, the complainant was present in
the said premises and in the midnight at about 2:00 am to 2:30 am the
appellant-accused entered into the said premises and committed rape
on the complainant-prosecutrix against her will and consent. The
complainant had opposed and resisted the said act of the present
appellant-accused. However, the present appellant-accused had run
away from the said place and he could not be traced out. Thereafter,
complaint was lodged at Gandhinagar Sector 21 Police Station and
investigation was carried out by the Investigating Officer.
Statements were also recorded and then after charge-sheet was filed
against the present appellant-accused for the offence under
punishable under Section 376 of the Indian Penal Code.
The
prosecution has examined six witnesses, namely, the
complainant-prosecutrix Devikaben Lasubhai Garasiya vide Exh.9;
Lalsinh Motibhai Garasiya, brother-in-law of the
complainant-prosecutrix vide Exh.11; Dr.Dipeshbhai M.Patel, Medical
Officer vide Exh.17; Bashirahmed Dosbhai Vora, P.S.I. Sola High Court
Police Station vide Exh.20; Raisinh Pratapsinh Chauhan, A.S.I. vide
Exh.21 and Chakarkhan Fatehkhan Baloch, P.S.I. and Investigating
Officer, Sector 21 Police Station vide Exh.22.
In
support of the prosecution case, the prosecution has also produced
documentary evidence as under:
Exh.10 Complainant
Devikaben’s complaint.
Exh.16 Medical
examination of the accused.
Exh.18 Medical
certificate of physical examination of the prosecutrix.
Panchnama
of the place of the offence.
Panchnama
of the body of the prosecutrix.
Panchnama
of the body of the accused.
Panchnama
of the seizure of ‘chaniya’ of the prosecutrix.
Panchnama
of the seizure of clothes of the accused.
Exh.23 Note
about sending of muddamal.
Exh.24 Note
about receipt of muddamal.
Exh.25 Report.
Thereafter,
statement under Section 313 of the Code of Criminal Procedure was
recorded by the learned Judge and after hearing both the parties at
length, the learned Judge pronounced the judgment convicting the
present appellant-accused for the said offence.
Heard
learned counsel Mr.Mukesh Dave appointed by the Legal Aid committee
for the appellant-accused. He has submitted that he is not arguing
this matter on merits. Simply he is arguing the matter on the quantum
of sentence. Mr.Dave has submitted that no doubt the act of the
present appellant-accused was antisocial and immoral but, the learned
Judge has not considered the defence of the appellant-accused. He has
read over the evidence of the prosecutrix as well as the witnesses
and has vehemently submitted that the place of the offence which the
prosecutrix has shown is the place where she had been staying with
her husband and her in-laws and it is not possible for a person to
commit offence under Section 376 at the said place. He has also
contended that this is a clear case of consent, which the learned
Judge has not considered. On merits, Mr.Dave has simply contended
that looking to the period which the present appellant-accused has
undergone, the Appeal is required to be allowed partly and the
present appellant-accused is required to be set at liberty.
Learned
APP Mr.Parikh has produced the jail report and has contended that the
present appellant-accused has undergone more than 50% of the sentence
period. On the question of consent, Mr.Parikh has relied upon the
evidence of the prosecutrix. However, on the question of considering
the period which the present appellant-accused has undergone, he is
unable to say anything.
Looking
to the age of the present appellant-accused and looking to the facts
and circumstances of the case and considering the fact that 50% of
the sentence period which the present appellant-accused has already
undergone, I am of the opinion that the present Appeal deserves to be
allowed partly.
On
the facts and in the circumstances of the case, this Appeal is partly
allowed. The Judgment and order
of conviction and sentence dated 3rd
April 2006 passed in Sessions Case No.6 of 2006 by the learned
Sessions Judge, Gandhinagar, convicting the appellant-accused under
Section 376 of the Indian Penal Code is hereby confirmed. However,
the order of sentence
sentencing the appellant-accused to undergo Rigorous Imprisonment for
seven years for the aforesaid offence is hereby modified and reduced
to the extent that the sentence, which the appellant-accused has
already undergone, be treated as the sentence. Rest of the impugned
judgment is unaltered. The appellant-accused is ordered to be set at
liberty forthwith, if he is not required in any other case.
(Z.K.Saiyed,
J.)
/moin
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