Gujarat High Court
Ismail Kalubhai Gharasia vs State Of Gujarat on 13 September, 2004
Author: D.K. Trivedi
Bench: D.K. Trivedi
JUDGMENT D.K. Trivedi, J.
1. Appellant -original accused of Special (Atro.) Case No. 15 of 1996 has challenged the judgment and order of conviction and sentence recorded by the learned Addl.Sessions Judge, Surat by which the learned trial Judge has convicted the accused for the offences under Sections 363, 366 and 376 of I.P.C. and under Section 3(1)(II) of Atrocities Act and after hearing on the point of sentence, the learned trial Judge has passed order of sentence for R.I. for 7 years and fine of Rs. 1000/- in default S.I. for 3 months for the offence under Section 363 of the I.P.C. and sentence for R.I. for 10 years and fine of Rs. 1500/- in default S.I. for 3 months for the offence under Section 366 of the I.P.C. and sentence for R.I. for 10 years and fine of Rs. 2000/- in default S.I for three months for the offence under Section 376 of the I.P.C. and sentence for R.I. for 6 months and fine of Rs. 500/- in default S.I. for 1 month for the offence under Section 3(1)(II) of the Atrocity Act and all the sentences imposed on him were ordered to run concurrently. Appeal filed by appellant accused in which the prayer for bail was considered when the matter was notified for admission. As per order dated 28.8.1998 the Division Bench has admitted the Appeal and the prayer for bail was not pressed. Accordingly this Appeal is notified for final hearing.
2. We have heard Mr.Saurin Shah, learned advocate, who appeared for the appellant and Mr.Abichandani, learned Addl.P.P., who appeared for the respondent State. Mr.Shah appearing for the appellant has vehemently urged that the learned trial Judge has committed error in appreciating the evidence with the result that the learned trial Judge has accepted the evidence of the prosecution witnesses and held that the prosecution has established the case beyond reasonable doubt and the accused is convicted for the above offences, which resulted into miscarriage of justice. He next urged that as found from the evidence of victim Sunita, being a minor, she in turn has stated that she was not knowing the accused and the learned trial Judge has while appreciating her evidence not properly looked into the aspect that as found from her evidence she has not identified the accused even after the accused was arrested and no identification parade was arranged in which Sunita has identified the accused. According to Mr. Shah that there is every possibility of misidentity of the accused and according to Mr.Shah that the conviction recorded by the learned trial Judge deserves to be set aside by giving benefit of doubt to the appellant accused. Mr.Shah next urged that in light of the evidence of victim Sunita, who is a minor between 9 to 10 years, and as found from her evidence wherein at the time of committing rape on her on the fateful night according to her she had sustained some injuries on the back portion of her body and further that she has also tried to assault the accused person, who had committed rape and admittedly as found from the medical evidence, there is no injury found on victim Sunita nor any injury is found on the accused person and this is a case in which at least the accused deserves to be entitled for benefit of doubt. He next urged that there is also a delay in lodging the FIR as according to the prosecution case, the incident in question has occurred on the night i.e. on 9.12.1995 after 8.30 P.M. and the incident has occurred in the sim of the field of Kudsad village and the complaint was lodged before the police on 12.12.1995. Mr.Shah has accordingly urged that there is a delay for about 2 days in not disclosing the offence and that is fatal to the prosecution. He next urged that the independent evidence of witness Chhotubhai examined by the prosecution as P.W.6 also does not suggest that victim Sunita has disclosed before him that she was subjected to rape by the accused person at the field when she reached at the field where Chhotubhai was working in a field with other labourers and even victim Sunita has not disclosed any incident of rape on her by the accused person. According to Mr.Shah that there is no other evidence corroborating the evidence of Sunita by which the evidence of Sunita is created doubt and that doubt must be available to the accused by giving benefit of doubt. Mr.Shah has also while taking us through the evidence and even with regard to the medical evidence and the serologist's report, submitted that the evidence is not complete to connect the accused and accordingly prayed that the Appeal filed by the accused be allowed and at least by allowing the Appeal the order of conviction and sentence recorded by the learned trial Judge be set aside by giving benefit of doubt. He alternatively submitted that at least looking to the facts of the present case, the sentence imposed by the learned trial Judge on all the counts deserves to be modified by reducing the same as according to him that for the offences punishable under Sections 366 and 376 of the I.P.C., the learned trial Judge has imposed sentence of RI for 10 years and the same be modified to some extent and he requested that the sentence undergone be passed.
3. Mr.Abichandani, learned Addl.P.P., has vehemently urged that this is a case in which a minor girl Sunita aged about 9 years was subjected to rape on the night of 9.12.1995. She was helpless as her father has gone to purchase rice for which they are required to prepare the food to eat by way of dinner. Younger brother was playing near the hut of the victim and the accused had with the intention to commit offence took her from her hut by tempting her that he will provide Bread (Rotla). By tempting the victim Sunita in absence of her father at the house, the accused has taken her at a field in the village at a far distance from the hut of the victim. Not only that after taking Sunita in the field, the accused has committed heinous crime of committing rape. Mr. Abichandani has also taken us through the evidence of victim Sunita P.W.2, who in turn has deposed that she was subjected to rape by the accused on the fateful night. Mr. Abichandani has also taken us through the medical evidence wherein as per the medical evidence when Sunita was taken for examination before Dr. Bhavnaben Rajan P.W.3, the Doctor has examined her on 12.12.1995 and she was also admitted as an indoor patient for 5 days where even the private part of Sunita was also badly damaged and the Doctor has also applied about 4 stitches on her. Dr. Anjanaben Dighe P.W.4, who is also working as Assistant Professor in the Hospital, has also corroborated the evidence of Dr. Bhavnaben P.W.3. The medical certificate of injuries found on Sunita are proved which is at Exh.9. Mr. Abichandani has accordingly urged that even as found from the cross examination of the medical officers, there is hardly any suggestion is made for which one can consider about the defence of the accused. According to Mr.Abichandani that when the learned trial Judge has accepted the prosecution case and the facts as established from the evidence of victim Sunita, the learned trial Judge has rightly believed the prosecution case and once the prosecution has established the case even through the victim and the medical evidence led by the prosecution of Dr.Bhavnaben P.W.3 and Dr.Anjanaben Dighe P.W.4, there is hardly any necessary to even consider for contention raised by Mr.Shah to give any benefit of doubt to the accused. Mr.Abichandani has also placed reliance upon the evidence of Doctor attached to the Hospital at Surat by which the accused was examined medically on 12.12.1995 and Serologist's report and the other report produced on the record of the case, and according to Mr.Abichandani that in view of the finding recorded by the learned trial Judge, this is not a case in which this court is required to interfere even by giving benefit of doubt to the accused. In respect of the contention of Mr.Shah for reducing the sentence, he contended that once it is established by the prosecution that the accused was responsible for committing rape on a minor girl Sunita, who is completely innocent and uneducated and she was staying with her father as she has also lost her mother, no leniency is required to be shown on the accused even by reducing the sentence as submitted by Mr.Shah and accordingly prayed that the Appeal filed by the accused be dismissed and confirm the order of conviction and sentence recorded by the learned trial Judge. He has also submitted before us by placing the jail statement which shows that the accused was released on temporary bail for 28 days and he was to surrender to the jail within time. However, he has absconded and he was only found and arrested by the police on 8.3.2003 and thereby he has committed another offence which was registered at Olpad Police Station under N.C.C.R.No.I-2/2003 and the accused was tried before the Magistrate in Criminal Case No. 507 of 2004 and the learned Judicial Magistrate, First Class at Olpad has as per judgment and order of conviction dated 30.1.2004 convicted the accused for the offence, namely, for Section 51(A)(B) of the Prison Act and ordered to suffer S.I. for 6 months and the sentence imposed in the said case is ordered to start running after the sentence in the present case is over.
4. In light of the submissions made before us, we have to consider that whether the learned trial Judge has committed any error in appreciating the evidence led by the prosecution and further that whether the accused deserves any benefit of doubt as contended by Mr.Shah. It is an admitted fact that victim Sunita at the relevant time was minor aged 9 to 10 years. She is the daughter of Bhangadiya Jelhiya Padvi P.W.5 and Bhangadiya was doing labour work at the field of Jayantibhai. He was having a small hut at the sim of village Kudsad and he was staying with his daughter Sunita. Sunita was the daughter of his first wife and his first wife had remarried with some other person. Bhangadiya had accordingly married with another woman named Sumaben and out of the marriage with Sumaben, a boy named Shravan was born. Sumaben had accidently died while doing labour work at Bardoli due to falling of the wall. After that incident, in which Sumaben had died, the witness Bhangadiya, his daughter Sunita and his son Shravan were staying in a hut in village Kudsad. Bhangadiya was originally of village Ranipur. As found from his evidence about the incident, which has occurred before 2 years of recording of his evidence, it is found that on that day in the evening he returned to his house after completing his work. At that time his daughter Sunita and his son Shravan were playing outside his hut. He returned at the house in the night at about 8.0 P.M. When he returned his son Shravan was found. However, his daughter was not found. He prepared the bread and went to find out his daughter Sunita. On inquiry to nearby Sunita was not found and accordingly he and his son Shravan has taken dinner and went to bed. On that day at midnight Sunita was brought by Chhotubhai and Jemu Devji. At that time his daughter Sunita has informed him about the incident of taking away by accused towards the field and informed him about the incident of rape on her by the accused. Sunita has also informed her father that the person, who has committed rape on her, has also shown the knife and asked her not to tell this story to anyone. Sunita has also informed her father what transpired at the hands of the accused and Sunita had also told that she is knowing that person. On the next day morning they went to find out the accused in the nearby area and he has told his daughter Sunita that if she finds accused then show him to him. On the next day one person was found near the water tank and Sunita has identified that man who is the person who has committed rape. The witness Bhangadiya has asked that man to stop. However, he has left the place. According to the witness that person, who was shown by his daughter near the water tank, was the person named Iqbal Garasiya, who is known as "Bulu". The witness has taken his daughter to the police station at Olpad with the cloth of the victim worn at the relevant time of committing offence, namely, frock and knicker, which he has produced before the police. He has also identified the muddamal frock and knicker before the court. After filing complaint Sunita was taken to Civil Hospital at Surat for treatment where Sunita was admitted as indoor patient for about 5 to 6 days. His daughter Sunita has also shown the place of offence to the police.
4.1 In cross examination it is found that at the sim of the village Kudsad there are about 50 to 100 small huts where labourers are staying. Mostly in this village Adivasis are staying. The portion in front of the hut is found open and these huts are standing on one line. Nearby his hut, there is a hut of Shri Chhotubhai and Jemu, who are related to him. When he had gone to village Kudsad at that time there was darkness and when he also returned to his hut there was also darkness. After he returned at the hut, he made inquiry of Sunita by visiting the nearby huts of his relatives and after taking the bread he had gone to sleep at about 9.0 P.M. In the morning two labourers had brought Sunita by lifting his daughter in his hut and at that time she was unconscious and she had also pain for which she was kept in the hut for about 2 days. He was also cross examined in respect of the room situated near the water tank and the persons who are residing in those rooms. The person who came at the water tank was on the next day in the evening at 6.0 P.M. and he has also raised cries. However, that person has run away. Before giving complaint to the police, he has not disclosed this incident to anyone. In village Kudsad there are two type of communities, who are residing, one is of Koli Patel Mohallo and another is of Mohallo of Musalmans. He went to Olpad for filing complaint in bus by leaving from his house at about 1.30 P.M. and reached at Olpad at about 3.30 P.M., alongwith him his daughter Sunita was with him. He had denied the suggestion that at the police station Shri Jayantibhai and Dahyabhai had also accompanied them. The frock and knicker of Sunita were handed over to the Police. The Police has come in the evening at about 6.0 P.M. and alongwith the police, Sunita had also gone to the field. He has denied the suggestion that around the time of incident, there was some dispute between Patel community and Garasiya community in village Kudsad. He had denied the suggestion that his daughter Sunita had not shown the accused when the accused came near the water tank and he had denied that he has not gone near the accused. The witness has in term denied that as his daughter was raped she become unconscious and was lying in the field itself. He had denied the suggestion that he had filed the complaint against the accused at the say of Jayantibhai by giving false complaint.
5. The evidence of prosecutrix Sunita P.W.2 is at Exh.10, which was recorded by the learned trial Judge, who has put some questions to her as she is minor to ascertain that whether she is in a position to understand the question and accordingly after putting preliminary questions to her, oath was given to her and her evidence is recorded by the learned trial Judge. At the time when her evidence was recorded she was aged 11 years. As found from her deposition that at the time of commission of the offence, she was hardly 9 years of age. She was residing with her father Bhangadiya Padvi and with minor Shravan. They came for labour work and were staying at village Kudsad in a hut near the sim of village Kudsad and they were working as a labourer in the field of Jayantibhai.
5.1 According to her at the relevant time of incident, she was playing with her brother Shravan near her hut as her father went to purchase rice. When they were playing one boy came and he has asked to come to take bread and accordingly she accompanied him to take the bread. She was taken in the field where the sugarcane were growing. She identified the accused in the court premises. She has narrated the incident of what transpired to her at the instance of the accused on that night, where she has deposed the act committed by accused on her even by removing her frock and knicker and also inserted finger on her private part. There was bleeding from her private part. She has narrated further about the actual rape being committed on her by the accused. By committing rape by the accused on her, there was bleeding. She was weeping. After committing the rape, the accused had also shown the knife and told her that she has not to tell this fact to anyone, otherwise he will kill her. The persons working in the field had taken her and brought her at her house where she has narrated the story to her father. She and her father went to find out the accused. However, the accused was not found and accordingly on the next day morning her father went in the village to find out the accused and she accompanied her father. The accused was seen near the water tank and she has shown the accused to her father that he is the same person who has committed rape. When her father went to inquire the accused has run away. On the next day she was taken to Olpad Police Station by her father where she has narrated the incident to the police. The Police has also taken down her complaint. The knicker and frock was also produced before the police. She identified the muddamal Article 1 frock and Article 2 knicker, which is the same which were given to the police. The accused at that time worn white shirt and black pant. She was taken to the Civil Hospital where she was examined and the stitches were taken on her private part and she was kept as an indoor patient for 6 days in the Civil Hospital and thereafter she was discharged from the Hospital.
5.2 Before the cross examination could start, a noting is made by the learned Presiding Judge that after the deposition of the victim was over, the witness Sunita was weeping and accordingly she was send out for cleaning the face and also for taking water. This indicate that when her evidence was recorded by the Presiding Officer and when she has narrated about the incident by which how she was subjected to rape by the accused person, she was weeping.
5.3 As found from the cross examination that prior to the incident she was not knowing the accused. At the time of incident her brother Shravan was hardly 2 years of age and no other boys were with them. At the time when the accused has asked her for giving bread at that time there was darkness and at the time of incident of rape there was also darkness and when she reached at the field where the labourers were lifting the sugarcane at that time also there was darkness. When she reached at her house, it was also morning time. She was not knowing the name of the labourers who had brought her at her house. As found from the cross examination that initially she has admitted that the police has taught her what she is required to depose in the court. However immediately thereafter she had denied the said fact. She was not knowing the name of the accused person before the incident nor she had seen his house. She has denied that prior to the incident she was not knowing where the accused was staying. According to her that the accused is residing in village Kudsad. After the rape committed on her she went towards the labourers by taking her knicker and frock and the labourers had lifted her and brought her at her house. As the rape was committed on her she was frightened and she was almost unconscious and she was not in a position to speak. According to her, she has narrated the story about the rape to the labourers and they have narrated the story to her father. She has not given any description of a person who has committed rape on her about the size, whether the person was thin, tall or short. There are shops situated in the huts. Kudsad village is at a distance from her hut. Her father had gone to bring rice at village Kudsad. She has seen the accused near the water tank from her hut and she had shown the accused to her father and her father has raised cries and alongwith her father other persons had also ran, by rasing shouts "catch catch" and the accused had run away. On the next day the police has brought the accused at her house. It is further found from the cross examination that she used to go to the field where she was subjected to rape by the accused persons. She used to go to the field with her father for labour work. She had denied the suggestion that on that night she went to the said field for taking sugarcane where some unknown person had committed rape on her. Before she was taken to the Hospital as she had a pain and accordingly she had slept over at her house. At the time of commission of offence, she raised cries. The accused has committed rape after one hour and because of the weight of the person who fallen on her there was sand on her back portion. She has also resisted even by using her hand and the nail and she has also sustained injuries on her back potion as well as on the chest and on the face. She had denied that she is deposing falsely against the accused.
6. P.W.3 Dr.Bhavnaben Rajan was working as a Resident Doctor in the New Civil Hospital, Surat in the gynecology department. On 12.12.1995 Sunita was brought by her father complaining about the rape on Sunita and accordingly M.L.C.Case No. 7108 was registered and she was admitted and she was examined. On examining her she was found aged about 8 to 9 years. She found on her body that the Unipotal was found torn by 4th degree and vagina was also found torn for which the Doctor has issued medical certificate which is at Exh.12, which reads as under:-
"General examination was normal. On local examination there was IVth degree perineal tear. The introitus, vagina and perineum soiled with stool.
The patient was admitted on 12.12.95 at 12.00 noon for examination of the genitalia under anaesthesia. There was IVth degree perineal tear which was repaired under anaesthesia on the same day. There were no other marks of external injury seen over the body.
The swabs from introitus and vagina for the presence of spermatozoa could not be taken because of soiling with stool.
The patient was discharged on 17/12/95"
She has also applied stitches by giving general anaesthesia to her. Looking to the size of the private part it was not possible for the doctor to take the swab. Sunita was admitted as indoor patient upto 17.12.95 while she was treated. The medical certificate under her signature was given. It was also signed by Dr. Anjana Dighe. This medical certificate is proved by Dr.Bhavnaben, which is at Exh.12.
6.1 In cross examination the Doctor has deposed that while giving certificate she has not given any opinion and she has also not stated the timing on the injuries which is recorded in the Certificate. She has not noticed any injury on Sunita's face nor she has seen any injury mark on her back as well as on her chest. When the patient was brought she was conscious. Doctor has inquired from the father of victim that who has committed rape. As per Doctor that in the normal course if a rape is committed on a girl aged about 8 to 9 years by a person aged 25 years in the field, then there is possibility of having injuries on the back portion and further that while committing rape and due to movement on the back portion of the body, the injury can be caused or some time no injury can be caused.
7. P.W.4 Dr.Anjanaben Dighe, who is the Assistant Professor and Gynecologist in Civil Hospital has also deposed in the manner in which P.W.3 has deposed and she has also deposed in respect of the injury found on Sunita when she was brought in the Hospital for treatment. The Certificate which was issued is in the hand writing of Dr.Bhavnaben and Dr.Anjanaben has also counter signed on the said certificate and the injury which was found is possible if rape is committed on victim.
7.1 In cross examination the Doctor has stated that she has examined the patient from day one she was admitted till she was discharged and she had denied that it is not a case of rape.
8. As found from the evidence of Chhotubhai Badiyabhai P.W.6 at Exh.15 he has deposed that at the time of incident he had gone to village Kudsad at Sayan Sugar Factory for cutting the sugarcane as a labourer. He was also staying in a hut near the sim of village Kudsad. On the day of incident at about 10.0 P.M. he had gone to the field for labour while taking truck. At the time when they were lifting the sugarcane, from the other field the victim, named, Sunita of village Ranipur came by weeping. She was also staying at the relevant time in the sim of village Kudsad in a hut. When he inquired what happened to her, she has replied that one boy had shown her knife. Thereafter, Sunita was taken at her hut, which was shown by her. Bhangadiya Padvi was present and Sunita was handed over to him. His statement was recorded by the police. As found from the evidence in chief that Sunita has not told him on the way that she is facing some trouble while walking and when he inquired with Sunita, she has told him that one unknown person had taken her in a field on the pretext of giving bread where he has committed rape on her. However, as per the evidence of Chhotubhai P.W.6 on the next day he came to know that one Ismail from village Kudsad has on the pretext of giving bread to the girl had taken that girl in a field and she was raped. The field in which the rape was committed was a field of Dahyabhai and he was not present in his field.
8.1 In cross examination he had denied that Bhangadiya Padvi, the father of victim Sunita, is related to him. His hut is situated near the hut of Shri Bhangadiya. Prior to 15 days before the incident, they had come for labour at village Kudsad and from there he knows Bhangadiya and victim Sunita. They were staying with the family consisting of wife and children. In his police statement he has stated that one girl has told her that one person had shown the knife. If this fact is not found in the police statement, it is possible that police might not have taken down in his statement. He had gone to labour work at the field of Dahyabhai. He can not say what is the area of the field of Dahyabhai. When the truck came near the hut in all there were 11 labourers had boarded the truck and all were of Adivasi community. No labourer from Ranipur village were there. He is not knowing the driver of the truck. No other persons from the factory were present in the truck and at the time when they were lifting the sugarcane in a truck at that time the owner of the field was not present. It took about 12 midnight for lifting the sugarcane which was lying in a field. He had denied that they have taken Sunita in a truck at her hut. The father of Sunita was sleeping. However, other persons nearby residing were not sleeping. He has stated that Sunita had told that one person had shown the knife to the police at Kim Police Chowky. The police took them at Police Chowky at Kim. The brother of Bhangadiya was also residing with his family near the hut of Shri Bhangadiya. He had denied that Sunita has not approached them at night and she has not disposed any history and further he has denied that as he is related to Bhagadiya he is deposing falsely.
9. Hasmukhbhai Jadav P.W.7 Exh.16 is the panch examined by the prosecution, who acted as a panch while drawing the scene of offence panchanama on 12.12.95. Alongwith him another panch Narendra Narsinhbhai was there. Sunita was present alongwith the police persons and Sunita had shown the place of offence. All of them went in a jeep at the place guided by Sunita. When the jeep reached at the field of Dahyabhai Kuberbhai on the side there are sugarcane. The said place was shown by Sunita and a panchanama was drawn. This panchanama was drawn between 7 to 8 A.M. After drawing the panchanama he has put his signature on the said document as well as the other panch Narendra has also put his signature. This panchanama is proved, which is at Exh.17.
9.1 In cross examination he had deposed that from the sim of village to the water tank the distance between is about 150 ft. They were taking tea at the Larry near the water tank from where they were called to act as a panch. Narendra was the owner of the tea larry. This tea larry is at a distance of 50 ft. from the huts. There was a movement of persons near the hut as well as near the water tank. Just opposite to the water tank there is a panchayat office. The distance between water tank and the office of the panchayat is at a distance of 50 ft. They have seen Sunita and her father in a police jeep. No other Adivasis were there. In the village Kudsad in one portion of the village the community of Garasiya are staying and in the other part there is a locality of Koli Patel. He knows the owner of the field Shri Dahyabhai Kuberbhai. When the panchanama was drawn Dahyabhai was not present in the field. They have not seen any blood on the earth. Near the field in which the offence is committed nearby there are other fields situated. He had denied the suggestion that they have put the signature on the prepared panchanama at Olpad Police Station. He had denied that at the instance of police he is deposing falsely. The panchanama Exh.17 is proved by which the police has drawn the panchanama of scene of offence shown by victim Sunita. This panchanama is recorded between 7 to 8 A.M.
10. Kantilal Chhaganlal Patel P.W.8 has deposed that he was called by the police to act as a panch at Olpad Police Station on 14.12.95 at 11.35 A.M. Alongwith him another panch Kaushikkumar was present. The accused Ismail Kalu was present in the police station. The police has attached from the accused the knicker and pant. In the said muddamal knicker at the place of private part there was one whole having some stain. He has identified the knicker of the accused which was seized by the police under panchanama. The police has also arrested the accused and the panchanama was prepared accordingly. The same is at Exh.19 drawn between 11.35 to 12.00 noon. He also identified the accused in the court.
10.1 In cross examination witness has deposed that the Olpad Police Station is situated in the centre of the village. It was his first instance for which he had gone to the police station. At the time of drawing the panchanama at the police station prior thereto P.S.I. and his staff persons i.e. about 2 to 3 persons were present. Except the panchas no other persons were present. He had denied that the muddamal pant and knicker were lying on the table of P.S.I. Except this muddamal cloth, he had not seen any cloth on the table of P.S.I. When the accused has removed his cloth, other cloths were provided to the accused. He had denied that he had not taken the muddamal pant and knicker in his hand and he had not seen by taking these muddamals on hand. A slip was also attached with the muddamal cloth signed by both the panchas on the panchanama as well as on the slip. He had denied that he has put his signature on a prepared panchanama. He had never acted as a Panch in respect of the offence registered at Olpad Police Station. He had denied that he is deposing falsely as per the say of the police. This panchanama Exh.19 is proved which shows that after providing other pair of cloth to the accused immediately the pant and knicker were seized by the police.
11. Exh.20 is the panchanama in respect of the cloth of the victim Sunita, which was drawn on 11.12.95 between 14.15 and 14.45 hours. These cloths of the victim were produced by Bhangadiyabhai father of victim before the police. On the knicker of Sunita there was stain of blood. Even on the muddamal article frock there were some stains. Exh.22 is the complaint filed by Sunita before the police in respect of the incident by which she has suffered at the instance of the accused on 9.12.95 at 20.30 hours and the complaint was lodged at the police station at 13.30 hours on 11.12.95. The distance from the scene of offence to the police station is about 27 Kms. We have already referred to while discussing the evidence of victim Sunita by which she has explained for late filing of the FIR after the incident. As found, she was hardly 9 years of age and as discussed the medical evidence earlier she was suffering from a pain and accordingly she slept over at her hut. Sunita is a Scheduled Tribe girl and the Mamlatdar, Sagbara has also produced the certificate, which is at Exh.23.
12. Shri Kuberbhai Desai P.W.9 is the investigating officer. He had deposed that he was posted at Olpad Police Station as P.S.I. between 23.6.1993 and 29.4.95. On 11.12.95 at 9.30 hours he was incharge of the police station. At that time the victim minor girl Sunita came with her father Shri Bhangadiya residing at village Kudsad and a complaint was given by Sunita which was taken down by him as per the say of Sunita, which he has taken down in his own hand writing. After taking down the complaint, Sunita has put her right hand thumb impression on the said document on each paper before him and he has also put his signature on the said complaint. Sunita has disclosed against the accused Ismail Kalubhai by saying that the said accused has on the pretext of giving bread taken in the field situated in the sim of village Kudsad, where accused has committed rape on her. After recording the FIR he has registered the offence and taken over the investigation. He has recorded statement of Bhangadiya Padvi, father of victim. In presence of Panch, Bhangadiya has produced the cloths of Sunita worn at the time when she was raped, namely, articles knicker and frock under the Panchanama. He has also identified the thumb mark of Sunita on the complaint and this complaint is at Exh.22. Sunita was deputed with lady Head Constable at Civil Hospital for treatment. A Panchanama was also drawn of scene of offence. He visited the village Kudsad and on inquiry accused was not found at his residence. He has recorded the statements of Chhotubhai Badiyabhai and other witnesses. The whereabouts of the accused were not found. He has also recorded the statement of Dahyabhai Kuberbhai, who was the owner of the field as well as Ketanbhai Narottambhai who is also having a field nearby the field of Dahyabhai. The accused was not available till 13.12.1995. On 14.12.1995 the accused Ismail of village Kudsad presented himself at the Police Station and immediately the pant and knicker were seized in presence of two panchas and the accused was arrested at 12.0 noon. He identified the muddamal Article 3 pant and muddamal Article 4 knicker of the accused, which were seized at the instance of the accused. The victim Sunita was admitted for treatment in Hospital from 12.12.95 to 17.12.95. She was discharged from hospital on 17.12.95. The Certificates issued by the Medical Officer regarding Sunita were received. The age of victim was 8 years. To ascertain the age of victim, a Yadi was issued to the Talati cum Mantri of village Sagbara. However, a reply was received that her birth date is not registered. Sunita was belonging to Scheduled Tribe community and therefore certificate from Mamlatdar was obtained and according to the certificate Sunita was of Hindu Bhill community. Immediately cloths were send for investigation before the F.S.L. The F.S.L. report as well as serologist report was received, which are at Exh.24 and on completion of the investigation, the charge sheet was submitted before the court and as there was an offence under the Atrocity Act, he has submitted report to the Social Welfare Department.
12.1 In cross examination he has admitted that he has taken the statement of labourer Devji, who was also a labourer who was also in the field with the other labourers, who had lifted the sugarcane in a truck. His name is also shown in the charge sheet as a witness. Jayantibhai's statement was recorded and he was also cited in the charge sheet as witness. Dahyabhai's statement was recorded, who is the owner of the field and he was also cited as a witness in the charge sheet. He has not recorded the statements of any other persons, who are residing near the hut of victim Sunita. The water tank is situated in the sim of village and he has not made any inquiry how many persons are residing near the water tank. He has not taken the statement of the person from the Gram Panchayat office. He had denied the suggestion that he has not recorded the statements of such persons because no such incident has ever occurred. He has not recorded the statement of Koli Patel of village Kudsad. He has not made any inquiry about the owner of the truck, by which the sugarcane were shifted. He has not made any inquiry about the other 11 labourers who had lifted the sugarcane in the truck. He had denied that he has not recorded the statements of such labourers because they were not supporting the say of complainant. There is no mention about presence of blood at the scene of offence in the panchanama. He had denied the suggestion that Chhotubhai and Khapariyabhai are related to the complainant and accordingly they were taken in the jeep at Kim Police Chowky. He has also denied the suggestion that the panchas were called in the police station and their signatures were obtained in the panchanama. He has not obtained any certificate that accused is residing in village Kudsad. He denied that he has created a false evidence against the accused and a false charge-sheet is filed against the accused.
13. As per the Serologist's report, in the cloth of victim Sunita blood found was of "B" Group and also in the said article frock the semen with human blood was also found and the blood group was inconclusive while in the knicker of Sunita blood found was of human of "B" Group. In Article 3 the pant of accused, there was no stain.
14. The statement under Section 313 of the Cr.P.C. of the accused is found at Exh.5. He is aged 28 years, doing labour work and residing at village Kudsad, Taluka Olpad, District Surat. On going through the said statement, his statement is of total denial of the prosecution case. He has not examined any witness in support of his case and he has not even stated anything that he would like to say anything in addition. He is also illiterate and he has also put his thumb impression below the statement on 23.12.97.
15. The learned trial Judge has considered the evidence in light of the defence of the accused and recorded finding by holding that the prosecution has established and proved that the victim was minor belonging to Hindu Bhill community. In light of the evidence of prosecutrix Sunita and in light of the evidence led before him, the learned trial Judge has also recorded finding that prosecution has established and proved that at the relevant time on 9.12.95 at 20-30 hours victim Sunita was residing at the sim of village Kudsad and she was playing near her hut from which the accused has in the pretext of giving bread taken custody of Sunita from the legal guardianship of her father and the purpose for which the accused has removed Sunita was to commit rape. The learned trial Judge has also accepted the prosecution case that the accused has taken Sunita from her house and took her in the field where she was raped by the accused. The learned trial Judge has on considering Certificate Exh.23 issued by the Mamlatdar held that prosecutrix Sunita was minor belonging to Hindu Bhill community, as the Mamlatdar is authorized to issue such certificate and further that in fact there is no challenge by the defence. The learned trial Judge has considered in respect of the offences under Sections 363 and 366 of the I.P.C. and according to the prosecution that minor Sunita on 9.12.95 at about 20.30 hours was playing in front of her house (hut) situated in the sim of village Kudsad. According to her on that day she was hardly 9 years of age and when she was playing with her brother, the accused had in the pretext of giving bread took her in the field and after taking Sunita from near her house in a field, she was subjected to rape.
16. It is the case of the defence that no statement of the persons, who are residing near the hut, were recorded and nobody has seen when victim Sunita was taken by the accused. It is also the contention of the defence in respect of late filing of F.I.R. as the incident in question has occurred on 9.12.95 at about 20.30 hours and the complaint was filed after 2 days i.e. on 11.12.95 at 13.30 hours and according to the defence no explanation is rendered by the prosecution and the accused is falsely involved in a serious offence.
17. The learned trial Judge has discussed the evidence of Sunita in detail at paragraph 7 and the learned trial Judge has also discussed the evidence of Bhangadiya Padvi, father of victim Sunita. In light of the evidence, the learned trial Judge has, while accepting the evidence of Sunita and her father Bhangadiya Padvi, held that the prosecution has established the prosecution case that it is the accused who had in the pretext of giving bread to victim Sunita taken her from the hut of the victim and accordingly from the legal guardianship of Bhangadiya Padvi she was taken and the accused has committed offences under Sections 363 and 366 of the I.P.C.
18. So far as the offence of committing rape is concerned, the learned trial Judge has discussed the evidence in detail while discussing the evidence of victim Sunita and the evidence of Dr.Bhavnaben Exh.11 and Dr.Anjanaben Dighe Exh.13 and the medical certificate issued about the minor Sunita and the fact that she was admitted as indoor patient from 12.12.95 to 17.12.95 and looking to the injuries found on the private part for which stitches were also taken and in light of the medical evidence and further the report of the F.S.L., the learned trial Judge has held that the prosecution has established the case that victim Sunita was minor and she was subjected to rape. The learned trial Judge has also considered the contention raised by the defence that as found from the evidence that at the time when Sunita was playing near her hut, it was night time and there was darkness and she could not identify the accused as she has admitted that at the time when the rape was committed on her at that time it was a dark night. It is also urged by Mr.Shah while arguing the matter that there is every possibility of misidentity of a person as admitted by victim that when she was taken from near her hut there was darkness and further that though there are other huts situated nearby the hut of Sunita, no witness has come forward, who had seen the accused taking away Sunita from her residence and further that even the Police has not recorded the statement of any of the persons who are residing nearby the hut of the victim. This argument is very attractive, but at the same time as found from the evidence of victim Sunita that though she had admitted that it was a dark night, but one cannot forget that she had travelled with the accused from her hut at a far distance where the field is situated and further as Sunita was subjected to rape at the instance of the accused and according to her it lasted for about an hour, while committing such act the accused is very close to the victim Sunita and she will not forget through out her life who acted in such a fashion with her. Therefore, it is hardly a ground for which we have to consider that Sunita has committed mistake while identifying the accused. It is the contention of Mr.Shah that even after the accused was arrested no identification parade was arranged by the police and by not holding the identification parade, Sunita was guided by her father. It is true that no identification parade was arranged after the accused was arrested. But as found from the cross examination of victim Sunita that it is her case that when she was in her hut she had seen the accused, who came near the water tank and the accused was shown to her father and Bhangadiya Padvi her father and other persons ran towards the accused by raising shouts and the accused has run away. However, as found from the cross examination that according to her that on the next day the police has brought the accused at her house. So the incident has occurred on 9.12.95 when the accused has on the pretext of giving bread taken minor Sunita from her residence, that too at a far distance in the field and committed rape on her after a long period for which even the medical evidence also support the case of Sunita that how she was subjected to rape by the accused. In our view, non holding of the identification parade after the arrest of the accused is not fatal to the prosecution and there is no question of misidentity at the instance of minor Sunita. Filing of late F.I.R. is in our view well explained by victim Sunita. She was minor hardly aged 9 years at the time of offence and looking to the medical certificate and the condition in which she was found and as she was suffering from pain, she had to remain in her hut and ultimately the complaint was filed and the Police Station is also far away at a distance of 27 Kms. from the place of incident. So far as sentence awarded by the learned trial Judge is concerned, any reduction by modifying the sentence is hardly required to be considered. In our view, a heinous crime is committed by the accused. A minor Sunita was raped who was hardly 9 years of age at the time of incident and accordingly even the sentence imposed by the learned trial Judge does not require any modification.
19. In our view the judgment and order of conviction and sentence recorded by the learned trial Judge deserves to be confirmed and the appeal filed by the accused deserves to be dismissed. Considering the fact that Sunita has suffered a lot, while dismissing this appeal, it will be in the fitness of things that the entire amount of fine if deposited by the appellant accused be paid to victim Sunita by the learned trail Judge after proper verification.
20. Accordingly the Appeal filed by the appellant accused is dismissed and the order of conviction and sentence recorded by the learned Addl.Sessions Judge, Surat dated 23.2.1998 while disposing of Special (Atro.) Case No. 15 of 1996 is hereby confirmed. However, while confirming the judgment and order of sentence imposed by the learned trial Judge and considering the imposition of fine amount under different Sections and considering the fact that the prosecutrix Sunita was a minor, aged 9 years at the time of offence and belonging to Scheduled Tribe community, we accordingly order that if the amount of fine is paid by the accused, then the said amount of fine be paid to the victim Sunita after proper verification by the Court.
K.M. Mehta, J.
Per K.M. Mehta, J. (Concurring Judgement)
1. I have an advantage of going through the judgement and order of my learned brother Mr. Justice D.K. Trivedi. I fully concur with the ultimate conclusion reached by my learned brother. However, looking to the importance of the matter, I would like to state my own views. Hence I pass separate but concurring orders as follows:
1.1 It may be noted that in para 2 of the judgement of my learned brother Mr. Justice D.K. Trivedi, he has referred to various contentions raised by Mr. Shah in assailing the order of the learned trial judge. My learned brother Mr. Justice D.K. Trivedi has considered the entire evidence on record including the evidence of victim, medical evidence, and other evidence led by prosecution. Ultimately, in paragraphs 18, 19, 20 my learned brother has reached to the conclusion after considering the evidence on record. I fully agree with the views expressed my learned brother Mr. Justice Trivedi. However, looking to the importance of the matter and looking to the fact that there are several cases coming on which offence of rape is committed, I would like to give my opinion setting out few facts as under:
2. Ismail Kalubhai Gharasia, appellant, original accused - convict prisoner, has filed this appeal against the judgement and order passed by the learned Additional Sessions Judge, Surat, for the offences punishable under Section 363, 366, 376 of Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in connection with Atrocity Case No. 15 of 1996. The learned Additional Sessions Judge while convicting the appellant for the offences punishable under Sections 366 and 376 of the I.P.C., sentenced the appellant to undergo rigorous imprisonment for a period of 10 years and fine of Rs. 1,500/- and Rs. 2,000/- respectively and in case of default to further undergo sentence of simple imprisonment for a period of 3 months each. The learned Additional Sessions Judge, while convicting the appellant for the offence under section 363 of the IPC, sentenced the appellant to undergo rigorous imprisonment for 7 years and a fine of Rs. 1,000/- and in default to further undergo simple imprisonment for a period of 3 months. The learned Judge while convicting the appellant for the offence punishable under Section 3(1)(xi) of the Act, sentenced the appellant to undergo rigorous imprisonment for a period of six months and fine of Rs. 500/- and in default to undergo simple imprisonment for a period of one month. The learned Judge ordered all the sentences to run concurrently.
3. In this case the learned Judge has relied on the evidence of PW 2, Prosecutrix, (name of victim is not written in view of the judgement of the Hon'ble Supreme Court in the case of State of Karnataka v. Puttaraja reported in 2003 AIR SCW 6429) at Exh. 10, on page 30 by which the victim who was 11 years old at the relevant time (she was aged 9 years at the time of incident) initially asked the questions by the Court as to whether she is able to give proper answers to the questions and thereafter her deposition was recorded. In her deposition she has specifically stated that the appellant had come to her house and lured her to take the field where he will give some food articles and in that pretext the accused took the victim to field and thereafter committed rape on her. The said evidence is corroborated by PW 3 Dr. Bhavnaben Ranjan, Exh. 11 on page 34 who is medical doctor and gynaecologist working in the hospital and the doctor has examined the victim. The doctor has stated that she has examined the victim and she had given treatment to the victim from 12.12.1995 to 17.12.1995. She has given certificate (Exh. 12) which has been produced and proved by her. In the certificate the doctor has specifically stated that on local examination there was IVth degree perineal tear. The introitus, vagina and perineum soiled with stool. The patient was admitted on 12.12.1995 at 12.00 noon for examination of the genitalia under anaesthesia. There was IVth degree perineal tear which was repaired under anaesthesia on the same day. There were no other marks of external injury seen over the body.
3A Another medical doctor Anjana Dighe, PW 4, who is Assistant Professor and Gynaecologist in the hospital, at Exh. 13 on page 37, also confirmed the same. She has also supported the evidence of Dr. Bhavanaben. Though the prosecution has examined other evidences to prove the offence, as far as offence punishable under Section 376 is concerned, the prosecution has successfully proved (1) that the accused had sexual intercourse with the victim in question; (2) that the victim was not the wife of the accused; (3) there was a penetration and the act done by the accused squarely falls within the ingredients laid down by Section 375 of the I.P.C. namely that the said intercourse was against her will and without her consent. It may be noted that there is no question of consent because the victim was under 16 years of age. Therefore, all the ingredients stated in Section 375 of the I.P.C. are satisfied. There is also an injury on the female organ as proved by the medical evidence.
4. In my view in the case of rape the main evidence in all such cases is that of the victim herself. The other evidence being merely corroborative. It is not necessary that there should be independent corroboration of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe to act upon it. The evidence led by the prosecution proves that the crime was committed and the same connects or tend to connect the accused with the crime. (Re: respected Mr. Justice C.K. Thakkar, (Now Judge, Supreme Court of India), Law of Crimes, page 1800).
5. It may be noted that in the judgement reported in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat reported in AIR 1983 SC 753 particularly paragraph No. 5 on page 755, paragraph Nos. 9, 10 and in paragraph No. 11 on page No. 757 the Hon'ble Court (Mr. Justice M.P. Thakkar) has observed as under:
"Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the "probabilities-factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification".
5.1 It may be noted that same principles have been followed by the Hon'ble Supreme Court in the case of State of Maharashtra v. Chandraprakash Kewalchand Jain reported in AIR 1990 SC 658, particularly paragraph Nos. 15 and 16 at pages 663-664 which read as under:-
"Para 15 - It is necessary at the outset to state what the approach of the Court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex-offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court bases a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue. Under the said statute "Evidence" means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114, which lays down a rule of practice, says that the Court "may" presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), Courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Ss. 133 and 114, illustration (b).
Para 16 - A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. xxxxxxxxxxx But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy."
5.2 The Hon'ble Supreme Court has relied on the the judgement in the case of Bharwada Bhoginbhai Hirjibhai (supra) in paragraph 19 on page 665 of the said judgement.
5.3 The same principles have also been followed by the Hon'ble Supreme Court in the case of State of Punjab v. Gurmit Singh reported in AIR 1996 SC 1393 where the aforesaid judgement in the case of State of Maharashtra v. Chandraprakash Kewalchand Jain (supra) has been followed and in para 8 the Hon'ble Supreme Court has given approval to the said judgement which I have referred to.
5.4 In view of a catena of judgements of the Hon'ble Supreme Court which I have referred once the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.
5.5 Similar view has been taken by a Division Bench of this Court in the case of Dalwadi Govindbhai Amarshibhai v. State of Gujarat reported in 2004(2) GLH 680.
5.5A In view of this the contention raised by the learned counsel for the appellant, my learned brother Mr. Justice D.K. Trivedi has dealt with this aspect of the matter and the entire facts and evidence of the case and came to the conclusion that the learned judge has not committed any error. However, in view of the legal position, all other contentions raised by the learned counsel for the appellant may not be necessary. Then, my brother has dealt with all these aspects.
5.6 In the present case medical evidence supports the case of the victim and therefore all the decisions which I have referred above squarely applies to the present case. In view of this, I dismiss the appeal filed by the accused appellant. In view of this, various contentions of the learned counsel be rejected and the view of the learned judge be confirmed and the appeal be dismissed.
5.6A It may be noted that in this case the prosecution has proved its entire case by examining the prosecutrix. The said evidence has been supported by the evidence of two doctors who have been examined. It may be noted that in this case the prosecution has examined the other evidence in the nature of corroboration for proving the case of prosecution. However, I have considered a passage from the book Law of Crimes by respected Mr. Justice C.K. Thakkar (now judge of the Hon'ble Supreme Court), judgement of the Hon'ble Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (supra), State of Maharashtra v. Chandraprakash Kewalchand Jain (supra), State of Punjab v. Gurmit Singh (supra). In view of the catena of decisions, it is firmly established that in case of rape if prosecution has examined prosecutrix and medical evidence then the prosecution has proved its case. For proving the case of prosecution, evidence of other corroboration is not required.
REGARDING SENTENCE:
5.7 As regards the sentence, I may also refer to a Division Bench judgement of this Court in the case of Vallabhbhai Avsarbhai Patel v. State Of Gujarat decided on 1-2/12/2003 wherein the Division Bench (Coram: K.R. Vyas and K.M. Mehta, JJ) has dealt with the same. Mr. Justice Vyas has also dealt with the said question and observed that the accused who played with the life of child does not deserve leniency in which he has relied on the judgement in the case of State of Rajasthan v. Om Prakash reported in AIR 2002 SC 2235 in paragraph 15.
5.8 In the said judgement I (K.M. Mehta, J) had an occasion to give concurring judgement as regards sentence. I have also relied on the judgement of the Hon'ble Supreme Court in the case of State of Rajasthan v. Om Prakash reported in AIR 2002 SC 2235 and other judgements of the Hon'ble Supreme Court in the case of Delhi Domestic Working Women'S Forum v. Union of India & Others reported in (1995) 1 SCC 14, Bhupinder Sharma v. State of Himachal Pradesh reported in 2003 AIR SCW 5493 and also an article of Ramification of Harassment of Women by Meena Rao, Professor, Department of Law, University of Mumbai published in (2003) Gujarat Law Herald, page 23 (Journal Section) and also the judgement in the case of Sevaka Perumal v. State of Tamil Nadu reported in AIR 1991 SC 1463, particularly paras 8 and 9 and in that case I have held that crimes of violence upon women should be severely dealt with and when an offence of rape is proved, that too on girls of every tender age, the sentence of imprisonment should be imposed with severity and confirmed the sentence of 10 years. The said judgement also supports the conclusion which I have taken in this behalf.
5.9 As regards the argument regarding sentence, because of the Division Bench judgement of this Court in the case of Vallabhbhai Avsarbhai Patel v. State of Gujarat (supra) for which I have referred, in case of rape the accused does not deserve any sympathy even on the ground of sentence and there is no reason to reduce the sentence and the order of sentence of the learned trial judge giving 10 years imprisonment is legal and the appeal requires to be dismissed.
5.9A It may be noted that in England The Criminal Justice Act 1988 had introduced to British law the concept of appeal being made against a sentence. There is also a little change in the attitude and for that I refer to book "Sex Crime - Sex Offending and Society" by Terry Thomas, First Edition (2000) page 80. The relevant portion is produced as under:
"The Criminal Justice Act, 1988 had introduced to British law the concept of an appeal being made against a sentence considered too lenient, and the first use of this Section was against a custodial sentence of three years for a man who had pleaded guilty to three counts of incest on one daughter and one count of incest with another daughter. The sentence was duly increased to six years, but at the same time, Lord Lane, the Lord Chief Justice now set out sentencing guidelines for similar crimes.
In summary, the maximum penalties were:
incest by a man with a girl under 13 - life imprisonment"
(Ref: Attorney General's Reference (No. 1 of 1989) (1989) WLR 1117) Regarding sentence - In this case the age of the minor at the time of incident was 9 year old which I have noted in the earlier part of the judgement. In this case the learned trial Judge has imposed imprisonment of 10 years and the learned advocate for the appellant has submitted that in any case the sentence should be reduced. I have given reasons as to why the sentence should not be reduced in the earlier part of this judgement after referring to various judgements of the Hon'ble Supreme Court. Even the book "Sex Crime - Sex Offending and Society" which I have referred also supports that when the offence of rape is committed by a man with a girl under the age of 13 years in England, the punishment is life imprisonment that clearly shows that the trend in England is also that when the offence of rape is committed on a minor girl the accused does not deserve any sympathy. They have issued guidelines which is binding on this Court and it does not leave any discretion in Court. Of course, this is a guiding principle which I have referred. In this case as the State Government has not filed any appeal and therefore there is no question of increasing the sentence but nonetheless I reject the submission of the learned counsel for the appellant that in any case the sentence should be reduced.
In the result, the appeal is dismissed. The order passed by the learned Additional Sessions Judge, Surat, for the offences under Sections 363, 366, 376 of I.P.C. and under Section 3(1)(xi) of the Atrocities Act dated 23.2.1998 is confirmed.