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CR.A/826/1997 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 826 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
=========================================================
STATE
OF GUJARAT - Appellant
Versus
RANAJI
MANSUNGJI THAKOR - Respondent
=========================================================
Appearance
:
MR
UR BHATT, ADDL.PUBLIC PROSECUTOR for
Appellant.
MR ALPESH G DODIA for
Respondent,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 14/10/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
This
is an appeal preferred by the State of Gujarat under Section 377 of
the Criminal Procedure Code, praying for enhancement of sentence
awarded to the respondent by the Trial Court by judgment and order
dated 25th June, 1997, rendered in Sessions Case No.
19/1997.
2. The
respondent was tried and convicted for the offences punishable under
Sections 363, 366 & 376 of the Indian Penal Code and was ordered
to undergo R.I. for a period of 3 years with fine of Rs. 500/-, R.I.
for 5 years with fine of Rs. 1000/- and R.I. for 5 years with fine of
Rs. 1000/-, for the said offences respectively, with a relevant
provision for further imprisonment in the event of default in payment
of fine.
3. We
have heard learned A.P.P. Mr. Bhatt for the appellant.
4. An
information came to be lodged by Ghemarji Hiraji Thakarda on
18.6.1995 at about 5.00 p.m., at Chhapi Police Station about missing
of his daughter Bhikhiben aged about 14 years from 22nd
May, 1995. An occurrence report entry was made by number 10/95 and
later on converted into F.I.R., when Bhikhiben was found from
Ahmedabad and informed that she was taken away by the respondent by
alluring her of marriage and happy life. On the basis of this, F.I.R.
was registered on 6.8.1995. Investigation was made and charge sheet
came to be filed. The case was committed to the Court of Sessions and
Sessions Case No.19/1997 was registered. The charge was framed
against the respondent at Exh.4 for the said three offences, to which
he pleaded not guilty and he claimed to be tried. The Trial Court on
the basis of the evidence, recorded conviction for the said offences
by the judgment impugned and awarded sentence as stated in the
earlier part of the judgment.
5. The
learned Additional Public Prosecutor contended that the sentence
awarded is unduly lenient and the discretion is not properly used by
the learned trial Judge while awarding sentence. The victim was a
minor girl and, therefore, the trial Court ought to have awarded at
least the minimum punishment prescribed by law.
6. Upon
examining the judgment, particularly the reasoning part, and
examining the evidence, we find that the prosecutrix was about 15
years of age at the time of the incident. It appears that she had
moved and stayed with the respondent for a long time. It also
appears from her evidence that she had gone with the respondent
willingly and was enjoying physical relationship willingly. However,
in view of the provisions contained in Section 375 of the Code of
Criminal Procedure, since she is below 16 years of age, her consent
becomes irrelevant. But, keeping this aspect in mind, the trial Court
has used its discretion and has awarded punishment as stated
hereinabove. We are of the view that in the facts and circumstances
of the case, it cannot be said that the discretion has been used in
arbitrary manner or that undue leniency is shown towards the
respondent so as to call for interference by this Court in its
appellate jurisdiction.
7. We
may also record that the conviction is dated 25th June,
1997 and the respondent has undergone the sentence and has been
released from the prison about 10 years back on 7.12.1998.
8. In
view of what is stated hereinabove, the appeal must fail and stands
dismissed.
[
A.L. Dave,J.]
[
J.C.Upadhyaya,J.]
(patel)
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