SHANUBHAI RAMJIBHAI GARASIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) 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.