BHURE BANKELAL NUNERE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE instant Appeal is preferred by the appellant -accused against the judgment and order delivered by the learned Presiding Officer, 6th Fast Track Court, Surat on 15th September, 2005 in Special Atrocity Case No. 7 of 2004, whereby the present appellant, being accused of the said offence, came to be convicted for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code. The accused was sentenced to undergo imprisonment for 3 years and to pay fine of Rs. 1000/ -, in default, to undergo simple imprisonment of 3 months for the offence punishable under Section 363 of the Indian Penal Code. He was also sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 2000/ -, in default, to undergo 1 month simple imprisonment for the offence under Section 376 of the Indian Penal Code. The accused was also sentenced to undergo simple imprisonment for 5 years and pay fine of Rs. 1000/ -,in default, to undergo simple imprisonment of 3 months for offence punishable under section 366 of the Indian Penal Code.

(2.) AS per the brief facts of the case, a complaint of the incident came to be filed on 20.5.2004 before Sachin Police Station by complainant Balo Moghji, father of the victim. According to him, complainant was doing labour work at Village: Kapletha. On 16th May, 2004, after loading a truck with the bricks, complainant and his wife Amnaben had slept at about 4:00 a.m. and they got up at about 6:00 a.m. At that time, the victim was missing and the appellant -accused was also missing from his hut. Relative of the complainant informed that she had noticed the victim was going with the appellant -accused at Sachin. Investigation started in pursuance of this complaint and the appellant -accused as well as the victim were found. After investigation, charge -sheet was filed in the Court of Judicial Magistrate First Class, Surat. Thereafter, the case was committed to the Court of Sessions under Section 209 of the Code -of Criminal Procedure. The victim, being of Scheduled Caste, the appellant -accused was also charged for the offence punishable under Section 3(l)(11)(12)of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1985, but, he was acquitted from the charge under the said Act. Vide Exhibit 5, charge -sheet was framed to which, accused pleaded not guilty and, therefore, prosecution examined 14 witnesses and produced on record voluminous documentary evidence. After recording of the statement of accused under Section 313 of the Code of Criminal Procedure and after hearing both the sides, learned trial Judge came the above conclusion and hence this Appeal.

(3.) MS . Sadhana Sagar, learned Advocate for the appellant -accused, restricted her submissions to the quantum of sentence only and did not press the Appeal on merits. It is submitted that though there are no adequate reasons for awarding sentence less than minimum but since the accused belongs to a poor family, and has children and having regard to the fact that the age of the accused was 22 years at the time of the incident, the sentence for offence punishable under Section 376 of the Indian Penal Code be reduced to minimum of 7 years. It is also submitted that since the accused is a poor person, the punishment of sentence awarded, in default of fine, on all three counts, also be reduced. It is submitted that, in a heat of passion, the offence is committed and having regard to the facts and circumstances of the case, the sentence be reduced to minimum.