DINESH ALIAS DINU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CHALLENGE in this appeal is to judgment and order dated 21.9.2007 rendered by learned Additional Sessions Judge, Fast Track Court, Dhrangadhra, in Sessions Case No.21 of 2007, whereby the appellant herein, who was original accused in the said Sessions Case, came to be convicted for the offences punishable under Sections 376, 366, 363, and 506 (2) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for ten years and fine of Rs.5,000/- and in default of payment of fine rigorous imprisonment for one year for offence punishable under Section 376 of the Indian Penal Code, rigorous imprisonment for five years and fine of Rs.3,000/- and in default of payment of fine rigorous imprisonment for six months for offence punishable under Section 366 of the Indian Penal Code and rigorous imprisonment for five years and to pay fine of Rs.3,000/- and in default of payment of fine rigorous imprisonment for six months for offence punishable under Section 363 of the Indian Penal Code and rigorous imprisonment for one year and fine of Rs.1,000/- and in default of payment of fine rigorous imprisonment for one month for the offence punishable under Section 506 (2) of the Indian Penal Code. All the sentences of imprisonment were ordered to run concurrently and the accused was given benefit of set off.

(2.) THE prosecution case, as unfolded during the trial, is that the incident occurred on 26.10.2006 at Village-Dhanad, Taluka-Halvad, District-Surendranagar. At about 8 p.m. on said date, the prosecutrix who happens to be sister of the first informant Avsarbhai Gordhanbhai, who was aged about 16 years, came to be kidnapped by the accused for the purpose of rape and she was taken to different places and she was threatened to dire consequences and was raped. First informant, Avsarbhai, brother of the prosecutrix, informed the incident to Halvad Police Station and his FIR was registered. During the course of investigation, statements of material witnesses were recorded. Necessary panchnamas were prepared in presence of panchas. On 18.12.2006, both the accused and the prosecutrix could be traced out. THE prosecutrix was sent to hospital for her medical check up. THE accused was arrested and he was also forwarded to hospital for medical check up. After collecting required material for the purpose of lodgment of charge sheet, charge sheet came to be filed in the Court of learned Judicial Magistrate (First Class), Halvad. Since the offence punishable under Section 376 of the Indian Penal Code is exclusively triable by the Court of Sessions, learned Magistrate committed the case to Court of learned Additional Sessions Judge, Dhrangadhra. THE trial Court framed charge against the accused at Exh.4, to which he did not plead guilty and claimed to be tried. THEreupon the prosecution examined 15 witnesses and produced 24 documents detailed in para 3 in the impugned judgment. After the prosecution concluded its oral evidence, the trial Court recorded further statement of the accused under Section 313 of the Code of Criminal Procedure and in his further statement accused denied all the incriminating circumstances emerging from the evidence adduced by the prosecution and put to him by the trial Court and stated that he was falsely implicated in this case. After evaluating and appreciating the oral and documentary evidence on record and after considering the submissions made on behalf of both the sides, the trial Court recorded conviction of the accused for the offences punishable under Section 376, 366, 363 and 506 (2) of the Indian Penal Code and awarded sentence as herein above referred to in this judgment. This has given rise to present appeal.

(3.) AT the outset, it is stated that since the appeal is not pressed on the count of conviction recorded by the trial Court for the offences established against the appellant accused, we do not find it necessary to re-examine and reassess entire oral and documentary evidence adduced by the prosecution before the trial Court. Suffice it to say that the trial Court after appreciating and examining the oral and documentary evidence came to the conclusion that all the offences charged against the appellant accused have been proved by prosecution beyond reasonable doubt and said finding has not been assailed on behalf of the appellant accused. However, the instant appeal is pressed only qua the quantum of sentence. As seen above, maximum sentence of imprisonment awarded by the trial Court for the offences proved against the accused is rigorous imprisonment for a term of ten years. Considering overall evidence on record and more particularly deposition of prosecutrix, PW-6, Exh.25, and the evidence regarding her age, there is no dispute that at the time of incident she was minor, aged about 16 years and 11 months. It is true that both the accused and the prosecutrix moved together to different places for the period of about two months. However, the trial Court by undertaking detailed analysis and appreciation of evidence observed in the impugned judgment that there was no consent of the prosecutrix. However, at the time of fixing the quantum of sentence, it appears that the trial Court without taking into consideration overall evidence of the prosecutrix so also the age of the accused, fixed the quantum of sentence.