Gujarat High Court
Dinesh @Ramjibhai Gelabhai Pargi vs State Of on 11 September, 2013
Author: G.R.Udhwani
Bench: G.R.Udhwani
DINESH @RAMJIBHAI GELABHAI PARGI....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1327/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1327 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE G.R.UDHWANI =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ DINESH @RAMJIBHAI GELABHAI PARGI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: MR.MRUDUL M BAROT, ADVOCATE for the Appellant(s) No. 1 MS MAITHILI MEHTA, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 11/09/2013 ORAL JUDGMENT
1. The appellant was charged with and convicted for the offences punishable under Sections 376 and 366 of the Indian Penal Code and has been inter-alia sentenced to rigorous imprisonment of five years by impugned judgment and order dated 19.07.2011 passed by the learned Sessions Judge, Rajkot in Sessions Case No.22 of 2011. The appellant is, therefore, before this Court.
The learned counsel for the appellant drew attention of this Court to testimony of PW:2 the victim herein, who was alleged to have been kidnapped by the appellant as complained by PW:1-Valjibhai Mavjibhai Parmar (father of the victim). The testimony of PW:2 indicates that she was aged above 15 years and had in fact intended to and actually eloped with the appellant and married to him in Chotila Temple and out of the said wedlock, conceived a baby girl on 07.08.2008. The prosecutrix was declared hostile and nothing could be extracted in favour of the prosecution in her cross-examination. It appears that as per the testimony of the prosecutrix, she was in love with the appellant. Another substantial evidence relied upon by the prosecution was that of Valjibhai Parmar (father of the prosecutrix) who stated in his testimony that at the time of offence, the prosecutrix was aged 15 years. From his testimony, it also appears that the witness wanted to arrange her marriage with someone else and therefore, she appears to have left the house promising him to return in the short while but did not return. It appears from his testimony that though this witness wanted to arrange marriage for his daughter, he did not want marry her to the appellant. It also appears from his testimony that on finding his daughter s absence at his home, he immediately contacted parents of the appellant which clearly suggests the fact that he knew about the relation of the appellant and the prosecutrix. In the cross-examination, the witness admitted the cohabitation of the appellant and the victim as spouses as also having conceived a baby girl.
From the testimony of the prosecutrix, it is difficult to reach to the conclusion that she was kidnapped or induced to accompany the appellant. No other evidence appears to be on record justifying the conviction under Sections 363 and 366 of the Indian Penal Code.
So far as Section 376 of the Indian Penal Code is concerned, what is required to be borne in mind is the fact of the prosecutrix aged more than 15 years having married to the appellant immediately after eloping with him. Though no evidence was given by the prosecutrix saying that she was raped by the appellant or he had sexual intercourse with her, it appears that the Court below proceeded on surmises and conjunctures to find the appellant guilty for the offence. The Trial Court also appears to have lost sight of exception to Section 375 of the Indian Penal Code which reads as under:
Sec.375. **** Exception:
Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.
Therefore, assuming that during the period of elopement after marriage as deposed by prosecutrix, there was a sexual intercourse by the appellant with the prosecutrix, the case clearly fell in the exception as above, and therefore, there was no justification to record a conviction under Section 376 of the Indian Penal Code.
It is also noticed that the Trial Court has mechanically, without addressing itself on two vital aspects i.e. marriage of the appellant and the prosecutrix and conception of baby girl out of the such wedlock, proceeded to impose a sentence of five years which was too harsh in the facts and circumstances of this case. The Division Bench of this Court in Criminal Misc. Application No.16967 of 2012 with allied matters in Paragraphs-5, 6 and 8 made following observations:
5.
So far as offence punishable under Sections 376 of the IPC is concerned, as seen above, it was borne out from the testimony of the Doctor that a disclosure was made before him by the prosecutrix of accused having had a consensual sexual intercourse with her. Even, the prosecutrix in her testimony deposed of the accused having had a sexual intercourse with her for about two or three times, against her wishes. On consideration of the deposition of the doctor, it appears that although there was an evidence of sexual intercourse with the prosecutrix, the possibility of respondent having used physical force, was ruled out in view of lack of injury marks on the person of the prosecutrix which normally would be found in the eventuality of use of force by the assailant. Therefore, on overall consideration of the evidence, it can be said that respondent had a consensual sexual intercourse with the prosecutrix, particularly when taking of prosecutrix out of lawful guardianship or enticing her away by original accused could not be established. Thus, the arguments advanced by the learned Advocate for the original accused that there was no evidence to establish sexual intercourse with the prosecutrix, has no merits.
However, it was only on technical ground of the prosecutrix being below age of 16 years, that original accused was held guilty of rape, which was otherwise a consensual sexual intercourse. While this fact cannot be pressed into service for acquittal, it will certainly have a bearing on the sentence to be imposed in a given case. In State of Punjab Vs. Rakesh Kumar [(2008) 12 SCC 33], in almost similar circumstances, the Apex Court on consideration of the age of the prosecutrix being less than 16 years at the time of occurrence, as also the fact as to her consensual intercourse with the accused, as also the affidavit of father of the prosecutrix conceding to adoption of a liberal view by the Court, fixed three years of RI and a fine of Rs.10,000/as appropriate sentence.
**** It is required to be appreciated that above proviso confers a discretion upon the Court, to be exercised judiciously. One of the consideration for such judicious exercise of discretion can be motive or mindset of the accused in committing the offence. An offence of rape involving violence and offending the modesty and dignity of victim as also violating her personal freedom as a person stands on a footing different from the incident of two consenting and willing persons jointly arranging an escapade for fulfilling their physical desires stemming from basic instincts, in ignorance of law and in defiance of social norms. In such cases, it has to be carefully examined whether it is proved beyond reasonable doubt that the accused compelled or enticed the alleged victim out of keeping of the lawful guardian and whether the accused had sexual intercourse with the victim under any of the six circumstances related in Section 375 of the IPC. When the only one condition of the woman being under 16 years of age is fulfilled, the offence of rape is committed. However, when the ingredients of force, violence, enticement and lack of will or consent are absent in evidence led before the Court, the Court must consider those circumstances as adequate and special reasons for not imposing the minimum sentence as prescribed in subsection (1) of Section 376 of IPC. The other relevant circumstances to be considered as extenuating circumstances in such cases may also be the age of the accused and the victim, their level of literacy and culture as also the impact of the offence and punishment on the parties concerned. In absence of mens rea or past record of criminality, a fair chance of rehabilitation in society must be given to the accused and the imprisonment must be just adequate to serve its purpose of having deterrent and reformative effect. Where sentence of long period of rigorous imprisonment is not likely to serve those purposes and instead likely to impoverish the accused or ruin his career and prospect in life in the prime of his youth, that may provide adequate and special reasons for making a departure from imposing minimum prescribed sentence. How much sentence and fine would serve the ends of justice would of course depend upon the facts and circumstances of each case; and there cannot be slide rule or straitjacket formula for that purpose. The Court may lean in favour of minimum justifiable fine and period of imprisonment, particularly in case of ignorant, poor, backward and young people where the important and major ingredients of the otherwise very serious offences are absent in evidence. It is high time that some sentencing guidelines are evolved in India on the lines they are issued by the United States Sentencing Commission; and alternative modes of punishment are devised to ease some of the avoidable burden on the prisons.
In fact, in the present case, the prosecution miserably failed in making out the case for conviction and thus, there was a total miscarriage of justice.
In view of the above discussion, the appeal is required to be allowed. Accordingly, the appeal succeeds.
9. The impugned judgment and order dated 19.07.2011 in Sessions Case No.22 of 2011 is quashed and set aside. Fine if any paid by the appellant shall be refunded. The appellant is ordered to be acquitted and he shall be set free forthwith if not required in any other case.
(G.R.UDHWANI, J.) rakesh/ Page 7 of 7