MANUBHAI DHEDIYABHAI RATHWA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD Ld. Advocate Mr. Hardik Shah for the appellant and Mr. Pandya, Ld. APP for the respondent. Perused the record in the form of paper book containing all the depositions and documentary evidence produced before the trial Court.

(2.) THE appellant has challenged the judgment and order dated 24/7/2008 passed by the Ld. Sessions Judge, Panchmahals at Godhra in Sessions Case No. 163/2007. By such impugned judgment, the Sessions Court has awarded maximum sentence of 10 years' rigorous imprisonment (RI) for the offence under section 376 of the Indian Penal Code (IPC) and maximum fine of Rs.1,000/ - with direction to undergo imprisonment for 30 days in default of payment of such fine and also convicted for lesser punishment of five years and three years for the offence under sections 363 and 366 of the IPC. The appellant has not been released on bail pending trial and pending this appeal. Therefore, when he was arrested on 18/7/2007, now he has undergone imprisonment of more than seven years. Therefore, Ld. Advocate for the appellant has submitted that this is a fit case to reduce the sentence to the extent of imprisonment already undergone and for the purpose he is relying upon judgment rendered in the case of Raj Kumar alias Raju Yadav alias Raj Kumar Yadav v. State of Bihar, 2006 9 SCC 589. If we peruse such cited judgment, it is true that the Hon'ble Supreme Court has reduced the sentence from seven years to period already undergone, which was about three and half years i.e. 50%. With due respect, if we peruse such judgment, it is a very small judgment wherein what is emphasized by the Hon'ble Supreme Court is only on one issue that when there is delay of three days in lodging the FIR and when Doctor who examined the victim has deposed that she did not find any confirmatory evidence of rape on the victim, the Hon'ble Supreme Court considered it as peculiar facts and circumstances and deemed it appropriate to reduce the sentence. Therefore, only because of reduction of sentence in the reported case, it cannot be said that in all such cases, sentence can be reduced irrespective of such peculiar facts and circumstances viz., nonavailability of evidence regarding commission of rape.

(3.) SIMILAR is the situation in the decisions rendered in the cases of Ravinder v. State of M. P., 2006 9 SCC 590 and Ram Kumar v. State of Haryana, 2006 4 SCC 347 and judgment rendered in Criminal Appeal No. 244/2009. While referring such judgments, the Division Bench, in Criminal Appeal No. 244/2009, has however rightly observed that even the Hon'ble Supreme Court fairly conceded in such judgment that there cannot be straight jacket formula and that sentence and reduction thereof depend on the circumstances of each case. Therefore merely because the Hon'ble Supreme Court has reduced the sentence in some cases, it cannot be said that in all such cases irrespective of facts, circumstances and evidence on record, accused are entitled to reduction of sentence only because they have undergone considerable sentence.