THAKORE TEJAJI DEVAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is preferred by the appellants-accused against the judgment and order of conviction and sentence dated 9-3-1999 passed by learned Addl. Sessions Judge, Mehsana in Sessions Case No. 276 of 1997. Vide impugned judgment, the learned trial Judge has convicted the accused No. 1 tejaji Devaji Thakor for the offences punishable under Secs. 363, 366, 376 and 380 of Indian Penal Code (I. P. C. for short) and accused No. 1 Tejaji was sentenced to undergo R. I. for 10 years and to pay a fine of Rs. 1000/- (Rs. One thousand only), in default to further undergo S. I. for 6 months for the offence punishable under Sec. 376 of I. P. C. , accused No. 1 was further sentenced to undergo R. I. for 7 years and to pay a fine of Rs. 1000/- (Rs. One thousand only), in default to further undergo S. I. for 6 months each for the offences punishable under Secs. 363 and 366 of I. P. C. , accused No. 1 was further sentenced to undergo R. I. for 3 years and to pay a fine of Rs. 500/- (Rs. Five hundred only), in default to further undergo S. I. for 3 months for the offence punishable under Sec. 380 of I. P. C. Accused No. 2 Jaibaben Devaji thakor, vide impugned judgment, was convicted for the offences punishable under sec. 376 read with 114 of I. P. C. and was sentenced to undergo R. I. for 5 years and to pay a fine of Rs. 1000/- (Rs. One thousand only), in default to further undergo S. I. for 3 months. Vide impugned judgment, accused No. 4 thakor Vaghaji Vihaji, accused No. 6 Thakor Bachuji Pratapji and accused No. 5 thakor Mangiben Vaghaji all have been convicted for the offences punishable under Secs. 363 and 366 read with Sec. 114 of I. P. C. and each of them were sentenced to undergo R. I. for 5 years and to pay a fine of Rs. 500/- (Rs. Five hundred only), in default to further undergo S. I. for 3 months each. Vide impugned judgment, accused No. 4 Thakor Vaghaji Vihaji, accused No. 6 Thakor bachuji Pratapji have been convicted for the offence punishable under Sec. 380 of I. P. C. and accused No. 5 Thakor Mangiben Vaghaji has been convicted for the offences punishable under Sec. 380 read with Sec. 114 of I. P. C. and each of them came to be sentenced to undergo R. I. for 3 years and to pay a fine of Rs. 500/- (Rs. Five hundred only), in default to further undergo S. I. for 3 months each. All the sentences were ordered to ran concurrently. Vide impugned judgment, accused No. 3 Velaji Devaji Thakor came to be acquitted from the offences for which he was tried, by giving benefit of doubt to him. We have addressed in this judgment, the appellants as accused Nos. 1, 2, 4 to 6 respectively.

(2.) THE impugned judgment and order of conviction and sentence passed by the learned trial Judge has been assailed on various grounds mentioned in the memo of appeal and learned Counsel Mr. Utkarsh Jani appearing for learned counsel Mr. B. G. Jani for the appellants-accused has taken us through all the grounds referred to in the memo and has submitted that the order under challenge is not sustainable because the conviction recorded is based on erroneous set of evidence and learned trial Judge has failed in applying the law in correct perspective. Like the original accused No. 3 Velaji Devaji Thakor - real brother of accused No. 1 Tejaji Devaji Thakor, all the accused persons could have been acquitted. It is alternatively submitted that atleast accused Nos. 2 and 4 to 6 ought to have been acquitted from all the charges levelled against them and the learned trial Judge has erred in imposing very harsh punishment on accused no. 1 Tejaji Devaji Thakor. This submission is advanced before us as an alternative argument and it is submitted that the learned trial Judge ought to have imposed just a token punishment i. e. less than minimum prescribed by assigning reasons that are available on record.

(3.) ON the other hand, the say of learned A. P. P. Mr. K. P. Raval is that the findings recorded by learned trial Judge are absolutely legal and the same are based on correct appreciation of facts and the prosecution when has satisfactorily established one fact that the victim girl Kailash was minor i. e. below 16 years of age, none of the accused could have been acquitted. However, the State has not preferred acquittal appeal qua original accused No. 3 and so this Court at least should dismiss the appeal preferred by the present appellants accused-persons.