DHARMENDRA DHIRAJLAL SONEJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The enigmatic problem which incidentally we have been called upon to resolve in these two appeals, one of which is for the enhancement of the sentence is a question - "Whether and when in the midst of an intense rampant, unabated, psychic pollution challengingly, spreading like the forest fire all around in the society and in particular engulfing and victimizing the unguarded young generation of slippery age making them prone to commit crimes because of the mesmerizing uncontrolled obscene films exhibiting sex and crime day in and day out beamed through the channels on the TV and the Government as if unconcerned with this doing nothing about it, can the unwary victim of such psychic pollution inflicted disease be punished and if at all punished savagely for the alleged offence of rape for 7 years ? Over and above and apart parents, has indeed the Government no public duty rather accountability to its citizens to take care of their psychic health by controlling and preventing the causes spreading the most contagious disease ? What for this purpose, what indeed the Women Action Groups do effectively to prevent, regulate and control the production of indecent films and the pornographic literature being televised committing shameless continuous affront and outrage on modesty of the women, young girls and even girls of tender age to protect their modesty, dignity and honour ? In fact, what indeed all the so-called sensible and prudent members of the society and the social reformists and action groups are doing to meet with and eradicate the psychic virus spread through vulgar T.V. culture ? Is mere condemnation of blue film exhibition in theatres, T.Vs. and drama is enough without there being any supplementary concrete action by the law enforcing agency in this regard ? Whether mere enactments of certain special Acts by the Parliament such as (i) The Indecent Representation of Women (Prohibition) Act, 1986, (ii) The Commission of Sati (Prevention) Act, 1987, (iii) Andhra Pradesh Devdashis (Prohibition and Dedication) Act, 1988, (iv) The Medical Termination of Pregnancy Act, 1971, (v) The Maternity Benefits Act, 1988, (vi) The National Commission for Women Act, 1990, (vii) Dowry Prohibition Act, 1961, (viii) Adding Sec. 304-B (Dowry-death) in I.P. Code, (ix) Adding Sec. 498-A in I.P. Code (cruelty by husband). (x) Adding Secs. 113(A) (Presumption as to the abetement of suicide by married women), 113-B (Presumption as to dowry-death) and 114-A (Presumption as to absence of consent in certain prosecutions for rape) in the Indian Evidence Act, (xi) Immoral Traffic (Prevention) Act, 1956 and many others, can be said to be "be all and end all" of the matter in face of increasing crimes against girls and women which can certainly be attributed to very great extent to dirty film culture polluting innocents, impressionable young ones ? These indeed are some of the most vexed and vital and accordingly disturbing questions where almost all appear to be at total loss to understand as what to do and accordingly, we feel that judicial discretion, rather that wisdom on the point involved warrants, mandates us to discharge our duty to the society by specifically observing something which may ultimately flood-light the neglected issue awakening the social spirit and the Government to attend to it now or never before it is too late.

(2.) In order to appreciate the aforesaid questions as to in what background and context the same arise, it is indeed first of all necessary to succinctly narrate the prosecution case as it gets reflected in the charge (Ex. 2) and the circumstances leading to filing of the present two appeals.

(3.) At trial, the accused pleaded not guilty and claimed to be tried. His case was that of total denial. The trial Court accepting and relying upon the evidence brought on record that of PW-7 Dr. R. I. Patel, convicted the accused for the offence of rape under Sec. 376 of I.P.C. sentencing him to suffer R.I. for 7 years and to pay a fine of Rs. 1,000.00, and in default, to undergo further R.I. for two months. So far as the offence punishable under Sec. 452 of the I.P.C. is concerned, the accused was sentenced to suffer R.I. for two years, and to pay a fine of Rs. 500.00 and in default to undergo further R.I. for 15 days. Both these substantive sentences were ordered to run concurrently. It is this order, which is challenged before us by way of two Criminal Appeals No. 716 of 1995 and 912 of 1995. The first one is by the accused against his order of conviction and sentence while the second one is by the State of Gujarat for the enhancement of sentence.