HASMUKH DEVJI KHAVASA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The original accused has invoked the appellate jurisdiction of this court under "Sec. 374 of the Code of Criminal Procedure, 1973 (the CrPC for brief) for questioning the correctness of the judgment and order of conviction passed by the learned Additional Sessions Judge of Rajkot on 15th January 1993 in Sessions Case No. 80 of 1991. Thereby the learned trial Judge convicted the appellant herein of the offences punishable under sections 376, 306 and 452 of the Indian Penal Code, 1860 (the IPC for brief) and sentenced him to rigorous imprisonment for 7 years and fine of Rs. 200 in default simple inprisonment for one month for the offence punishable under Sec. 376 thereof and rigorous imprisonment for 5 years and fine of Rs. 200 in default simple imprisonment for one month for the offence punishable under Sec. 306 thereof without passing any sentence for the offence punishable under Sec. 452. The learned trial Judge ordered all sentences to run concurrently.

(2.) The facts giving rise to this appeal move in a narrow compass. The entire case centres round one girl, named, Meena. She was about 17 years and 2 months old at the relevant time as transpiring from her school leaving certificate at Ex. 92 on the record of the case. .'Her birth-date as recorded therein is 6th December 1973. The incident giving rise to the criminal proceeding and this appeal is stated to have occurred on 9th February 1991 at about 4.55 p.m. It is the case of the prosecution that at that time she was practically alone in her house listening to some film songs on a tape recorder. Her younger sister, named, Sonal, was playing just nearby. At that stage, the appellant-accused was stated to have visited her house, dragged her inside the room and ravished her. Thereafter he is stated to have poured kerosene on her body and fled from the scene. Thereafter she is stated to have set herself to fire. Her father was informed of the incident at the place of his work. He ran down to his home. She is reported to have told him about the incident and having set herself ablaze out of fear. She was carried to Government Hospital at Rajkot for examination and treatment. She was found to have received burns of the first degree. She was first examined at about 5.55 p.m. by the Medical Officer at the relevant time. She was then admitted as an indoor patient at about 6 p.m. There is a police chowki known as the hospital police chowki in the compound of the Government Hospital at Rajkot. The Police Constable of the hospital police chowki was informed of the incident. He appears to have approached the patient. He took down whatever he gathered from the patient in his police chowki register. He passed on the information to the City 'C Division Police Station at Rajkot. That was taken down in the station diary. The case was handed over to Police Sub-Inspector Shri Pathan for investigation. He recorded the complaint of the patient. He arranged for recording of her dying declaration. The Executive Magistrate recorded her dying declaration at about 8. 45 p.m. on that day. She is stated to have breathed her last at about 10.25 p.m. on that very day. Her post-mortem was conducted. In the meantime a copy of the first information report was filed in the court of the Chief Judicial Magistrate at Rajkot on 10th February 1991. On completion of the investigation, the necessary charge-sheet was submitted in the court of the Chief Judicial Magistrate at Rajkot on 7th May 1991 charging the appellant-accused with the offences punishable under Secs. 307, 452 and 376 and 306 of the IPC. It came to be registered as Criminal Case No. 2121 of 1991. Since the offences mentioned in the charge-sheet were triable by the court of sessions, the learned Chief Judicial Magistrate committed the case to the Sessions Court at Rajkot for trial by his order passed, on 21st May 1991. It came to be registered as Sessions Case No. 80 of 1991. It appears to have been assigned to the learned Additional Sessions Judge at Rajkot for trial. The charge against the accused was framed on 7th August 1992 at Ex. 1 on the record of the trial court. He did not plead guilty to the charge. He was thereupon tried. After recording the prosecution evidence and after recording the further statement of the appellant- accused under Sec. 313 of the Criminal Procedure Code and after hearing the arguments, by his judgment and order passed on 15th Januay 1993 in Sessions Case No. 80 of 1991, the learned Additional Sessions Judge convicted the appellant-accused of the offences punishable under Secs. 376, 306 and 452 of the Indian Penal Code and sentenced him to rigorous imprisonment for 7 years and fine of Rs. 200 in default simple imprisonment for one month for the offence punishable under Sec. 376 thereof and rigorous imprisonment for 5 years and fine of Rs. 200 in default simple imprisonment for one month for the offence punishable under section 306 thereof. No separate sentence for the offence punishable Sec. 452 thereof was passed. The learned trial Judge ordered all the sentences to currently. The learned trial Judge acquitted the appellant herein of the offence punishable under Sec. 307 of the Indian Penal Code. The judgment and order of conviction and sentence aggrieved the appellant-accused. He has therefore invoked the appellate jurisdiction of this court under Sec. 374 of the Criminal Procedure Code for questioning the correctness of his conviction and sentence by the learned trial Judge.

(3.) It appears that the prosecution agency was aggrieved by the order of acquittal of the appellant-accused qua the offence punishable under Sec. 307 of the Indian Penal Code. The prosecution agency was also dissatisfied with the inadequacy of the sentence imposed on the appellant-accused. It therefore preferred Criminal Appeal No. 551 of 1993 challenging the inadequacy of the sentence imposed on the accused under Sec. 377 of the CrPC and filed Criminal Appeal No. 552 of 1993 questioning the correctness of the acquittal of the appellant-accused of the offence punishable under Sec. 307 of the IPC under Sec. 378 of the CrPC Both the appeals came to be summarily dismissed by the Division Bench of this court on 27th December 1993.