YUSUFBHAI SULEMANBHAI VADI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant-orig. convict has preferred present appeal under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 01st March 2002 passed by the learned Extra Assistant Sessions Judge, Valsad at Navsari in Sessions Case No.25/97, whereby the learned trial Judge has convicted the appellant for the charge of offence punishable under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.3000/- and in default of making payment of fine, he is ordered to undergo simple imprisonment for one year.

(2.) Shri Imran Pathan, learned counsel appearing for the appellant, has taken me through the judgment and order under challenge as well as the oral and documentary evidence led during the course of trial. It is submitted that the amount fine has been paid by the appellant. The finding of guilt and so also the decision as to the quantum of punishment imposed by the learned trial Judge have been assailed by the appellant on various grounds mentioned in the memo of the appeal. According to Shri Pathan, there is some element of consent and, therefore, the learned trial Judge ought to have given benefit of doubt to the appellant. The story placed by the prosecution on first sight appears to be improbable and as the victim got married at the age of 19 years, no cogent evidence as to the commission of rape was noticed during the physical examination of the victim. The main submission of Shri Pathan is that the learned trial Judge ought to have appreciated the oral version of the victim and the evidence of other witnesses in the background of improbabilities, so also the time of incident, etc. The appellant has been linked with the crime on the strength of the identity of the bicycle which he was allegedly riding; and the Test Identification parade panchnama also does not inspire confidence because there is infirmity in making arrangements to draw T.I. Parade panchnama. So the first fold of argument of Shri Pathan is that the appellant ought to have been acquitted by the learned trial Judge. However, the second fold of argument of Shri Pathan is that looking to the age of the appellant and victim, some punishment less than minimum prescribed could have been awarded by assigning reasons. It is in evidence that the husband of the victim had expired after the incident before he could be examined as witness in the matter. It is in evidence that in the village where the appellant resides, the victim and her husband had overstayed and they were proceeding to other village so that they can sell the earthen pots manufactured by them. Undisputedly, the victim was following the cart driven by her husband and at that time, the incident in question has occurred. Even otherwise, as per the say of the prosecution, the appellant had joined the victim on his bicycle. So some physical attraction might have led the appellant-teenager to this lusty act. So in such a situation, keeping the age of the appellant and victim in mind, the learned trial Judge could have awarded some lesser punishment. Merely because the minimum punishment is prescribed, it may not have been imposed mechanically. Ultimately, the imposition of sentence should carry the true message to the society and similarly, the same should have the element of deterrence. If the sentence of 5 years' rigorous imprisonment had been imposed, it would have met the ends of justice.

(3.) Ms.D.S. Pandit, learned Additional Public Prosecutor, has strongly resisted the say of Shri Pathan qua the appeal assailing the legality and validity of the judgment and order of conviction and sentence recorded by the learned trial Judge. It is submitted that the married lady aged about 19 years would not have consented to anything when her husband was driving the cart loaded with earthen pots couple of feet ahead. The victim was following the said cart, practically as a watchdog. There might be some distance between the cart and the victim, and the incident has been meticulously narrated by the victim in the complaint as well as in her deposition. There is neither material contradictions nor modulations in the basic story. Some swelling was also found on the male organ of the appellant when he was examined by the doctor, that too after some hours. It was neither claimed nor submitted before the Court that the appellant is also a married man. Smegma was not present when he was examined. On the other hand, some injury on the body of the victim girl was also found. This shows that she must have struggled. Of course, the husband of the victim could not be examined on account of his untimely death. But the fact remains that the complainant and the Investigating Agency were able to locate the appellant as he had just run away from the spot leaving his bicycle on the road. The said bicycle was identified and the link between the bicycle and the appellant has been established satisfactorily by the prosecution. As the appellant was unknown to the victim, the T.I. Parade was arranged and the appellant was identified by the victim in presence of Executive Magistrate. There was no reason for the victim lady to implicate the appellant herein in such a grave and serious offence if somebody else had committed the offence. The medical examination of the victim and other evidence, including the report of Chemical Analyser squarely cover the say of the victim.