NAVINBHAI GOVINDBHAI SUTHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant is convicted by the Ld. 2nd Addl. Sessions Judge, Deesa, Banaskantha, vide judgment and order dated 22/10/2008 in Sessions Case No. 21/2008 for the offences punishable under sections 363, 366 and 376 of the Indian Penal Code [for short 'IPC']. The Sessions Court has awarded sentence of seven years' rigorous imprisonment [RI] and fine of Rs. 1,000/ - and in default of payment of fine, further simple imprisonment [SI] for one month, for the offence punishable under section 376 of the IPC; whereas sentence of five years' RI and fine of Rs. 500/ -and in default of payment of fine, further SI for 15 days, for the offence punishable under section 363 of the IPC. No separate sentence was awarded under section 366 of the IPC. Both the sentence was ordered I to run concurrently. Therefore, practicably the appellant has to undergo imprisonment for total seven years. Heard Ld. Advocate Ms. Krishna Mishra for the appellant and Ld. APP Ms. Jirga Jhaveri for the respondent.

(2.) THE sum and substance of the appellant's case is very short, to the effect that since the appellant had undergone the imprisonment for almost seven years and he would be released on completion of such period on 24/8/2013, considering the several judgments rendered both, by the Hon'ble Apex Court and this Court, irrespective of actual details of the case, he should be given benefit of such judgments and should be released at the earliest, even if the order of conviction is confirmed, then by reducing the sentence for the period of imprisonment actually undergone by the appellant till the date of the judgment. In support of such submission, the appellant is relying upon the decisions of the Hon'ble Apex Court rendered in the cases of Ravinder v. State of M.P. Reported in, [2006] 9 S.C.C. 590 and Raj Kumar v. State of Bihar Reported in : [2006] 9 S.C.C. 589. The appellant has also relied upon unreported judgments of this Court [Coram : Z.K. Saiyed, J.] rendered in Criminal Appeal No. 188/2009 dated 30/8/2010 and Criminal Appeal No. 1243/2008 dated 7/2/2011.

(3.) LD . Advocate for the appellant has also submitted that since this Court has in the above referred two unreported judgments of this Court, given similar benefit to the accused even though the victim was below 16 years of age, such benefit I should be extended to the present appellant also. Suffice it to say that only because in some cases the Court has given some benefit to the accused, the same benefit cannot be granted to all the accused in all cases without considering the facts, circumstances and evidence on record as well as nature of offence and other relevant material. Amongst above referred two unreported judgments in Criminal Appeals, in Criminal Appeal No. 188/2009, the Court has simply stated that when the learned advocate appearing for the appellant is not arguing the matter on merits, but arguing the matter only on the quantum of punishment, period of sentence is required to be reduced from seven years to five years. Whereas in Criminal Appeal No. 1243/2008, with the same ground, the Court has deemed it fit to reduce the sentence stating that the age of the appellant is also to be considered.