Gujarat High Court
Harishchandra Cheturam Kevat vs State Of on 12 February, 2009
Author: Akil Kureshi
Bench: Akil Kureshi
HARISHCHANDRA CHETURAM KEVAT....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/374/2009 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 374 of 2009 With CRIMINAL APPEAL NO. 597 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes 2 To be referred to the Reporter or not ?
Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 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 ?
No 5 Whether it is to be circulated to the Civil Judge ?
No ========================================= HARISHCHANDRA CHETURAM KEVAT Versus STATE OF GUJARAT ========================================= Appearance:
MR SHAILESH C SHARMA, ADVOCATE for the Appellant MS HB PUNANI APP for the Respondent ========================================= CORAM:
HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date :
08/07/2013 CAV JUDGEMNT (PER :
HONOURABLE MR.JUSTICE R.P.DHOLARIA) [1] Criminal Appeal No.374 of 2009 has been preferred by the appellant accused against his conviction and sentence and Criminal Appeal No.597 of 2009 has been preferred by the State for enhancement of sentence awarded to the accused.
[2] Both the above referred Criminal Appeals have arisen from the same judgment and order delivered by the learned 3rd Additional District & Sessions Judge, Surat on 12.02.2009 in Sessions Case No.55 of 2008.
[3] The accused was convicted for the offence punishable under Section 452 of the Indian Penal Code and was sentenced to undergo simple imprisonment of one year and to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment of three months. The accused was convicted for the offence punishable under Section 376 of the Indian Penal Code and was sentenced to undergo simple imprisonment of seven year and to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment of one year. The learned 3rd Additional District & Sessions Judge, Surat has ordered to run both the sentences concurrently.
[4] The facts in short giving rise to the present appeals are as under.
[4.1] According to the prosecution case, the complainant was residing at Room No.14, Rammuratni Chawl, Gurukrupa Society, Ishwarnagar, Gabheni Road, Sachin GIDC, Surat. It is the case of the prosecution that the accused by taking benefit of loneliness of victim in absence of complainant Ramprakash and his wife Mayadevi, illegally entered in the house of the complainant and committed rape on his handicapped daughter, aged about 13 years. The complaint being C.R. No.I-230/2007 came to be registered before Sachin Police Station for the offences punishable under Sections 452 and 376 of the Indian Penal Code.
[5] Necessary investigation was carried out by PI, Sachin Police Station. Thereafter on conclusion of the investigation, Investigating Officer submitted the charge-sheet against the accused in the Court of learned 5th Additional, Civil Judge & Judicial Magistrate, First Class, Surat and as the case was exclusively triable by the Court of Sessions, the 5th Additional Civil Judge & Judicial Magistrate, First Class committed the case to the Court of Sessions which was numbered as Sessions Case No.55 of 2008.
[6] That the learned 3rd Additional District and Sessions Judge, Surat framed charges against the accused vide Ex.4 on 28th August, 2008. The accused pleaded not guilty and the prosecution tendered oral as well as documentary evidence.
[7] To prove the case against the present accused, the prosecution has examined following eleven witnesses.
P.W.1 Ramprakash Jaharilal, complainant Ex.8 P.W.2 Amarsinh Shripal Gupta, panch witness Ex.10 P.W.3 Gangaprasad Gorelal Gupta, panch witness Ex.12 P.W.4 Javaharlal Kholadi Shahu, panch witness Ex.13 P.W.5 Shyamsundar Hiramanrai, witness Ex.15 P.W.6 Ms. S, prosecutrix Ex.16 P.W.7 Dr.Gaurang Somabhai Solanki Ex.17 P.W.8 Dr.Gaurang Jagdishchandra Patel Ex.19 P.W.9 Karsanbhai Rambhai Bhuva, P.I. Ex.21 P.W.10 Dr.Rutuja Kandarp Desai Ex.23 P.W.11 Mahendrasinh Vajesinh Rathod, P.I. Ex.26 [8] In addition to the above oral evidence, the prosecution also tendered documentary evidence as under.1
Complaint Ex.09 2 Arrest panchnama Ex.11 3 Panchnama of clothes of victim Ex.14 4 Medical Certificate of the accused Ex.18 5 Medical Certificate of the victim Ex.20 6 Medical Certificate of the victim Ex.25 6 Information letter Ex.27 7 Panchnama of scene of offence Ex.28 8 Preliminary report of F.S.L Ex.29 9 F.S.L. Report Ex.30 10 Serology report Ex.31 11 Written yadi to F.S.L. for analysis of mudamal Ex.32 12 Receipt of F.S.L. regarding receiving muddamal Ex.33 [9] At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of both the parties, the learned Sessions Judge convicted the accused for all the charges leveled against him by judgment and order dated 12.2.2009.
[10] Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant State has preferred the appeal for enhancement of sentence and the accused has preferred the appeal against his conviction and sentence.
[11] Heard Mr.Shailesh C. Sharma, learned advocate for the appellant original accused and Ms.H. B. Punani, learned A.P.P for the State at length.
[12] Both the appeals have arisen from the same judgment and order and, therefore, heard together and decided together. We have undertaken a complete and comprehensive appreciation of all vital feature of the case in both the appeals and the entire evidence on record with reference to the broad and reasonable probabilities of the case, have been considered by us. The contentions raised by both the sides have also been taken into consideration. We have re-appreciated and scrutinized each corner of the case to come to our independent conclusion.
[13] Learned advocate for the accused has submitted that the complainant who is father of the prosecutrix has not supported the prosecution case. He has submitted that the learned Sessions Court has erred in relying upon the evidence of the prosecutrix who is a child and mentally retarded. He has submitted that solely based upon her evidence, the conviction could not have been recorded by the Sessions Court. He has submitted that the Sessions Court has erred in appreciating the evidence of P.W.7 Dr.Gaurang Somabhai Solanki, Ex.17 and medical certificate given by him at Ex.18 regarding the history given by the accused. He has submitted that the said history is not admissible as per the provisions of the Indian Evidence Act, 1872. He has further contended that the Sessions Court has failed to evaluate the evidence on record in its proper perspective and has wrongly recorded the conviction against the accused. He has contended that the history given by the accused regarding injury upon his body caused is inadmissible in evidence as accused was in police custody. He has urged to allow the appeal and to quash and set aside the judgment and order of conviction passed by the Sessions Court.
[14] Learned A.P.P for the State has submitted that the sentence awarded by the Sessions Court is highly inadequate and disproportionate to the offence committed by the accused and, therefore, the same is required to be enhanced. She has argued that the Sessions court has rightly appreciated the evidence on record and has rightly convicted the accused taking into account that the prosecutrix was aged about 13 years and also handicapped and the accused was aged about 24 years, who by taking advantage of loneliness of victim committed rape upon minor girl, the Sessions Court ought to have awarded maximum punishment for the aforesaid period. She has submitted that the Sessions Court committed an error in not appreciating the evidence of victim wherein she has clearly deposed in her deposition that the accused committed rape on her against her will and wish. The evidence of victim is also supported from medical evidence, then in that case the Sessions Court has no reason to impose minimum punishment and, therefore also, the sentence awarded by the Sessions Court is required to be enhanced.
[15] In order to appreciate rival contentions made by the respective parties, it is required some narration of evidence on record and proceedings.
[16] The prosecution has examined P.W.1 Ramprakash Jaharilal, complainant and father of the prosecutrix at Ex.8. He has deposed that the prosecutrix was handicapped and mentally retarded. He has deposed that the accused was belonging to his own native Fatehvara, District : Hamidpur, U.P., and he was doing piecemeal labour work. He has further deposed that the accused borrowed the money from the complainant and when the complainant demanded the money from the accused he quarreled with the complainant. Thereupon, the complainant had beaten the accused and took him to the police station. He deposed that on the date of incident, the prosecutrix was alone in the house and on that day due to power failure, he came early at home. He has deposed that it is true that the accused met him in the gallery and took him to his house. He deposed that it is not true that prosecutrix has not told him that the accused committed anything wrong with her. In the cross-examination, the complainant has deposed that he lodged the complaint due to quarrel took place between the complainant and accused about demanding money from the accused.
[17] The prosecution has examined P.W.2 Amarsinh Shripal Gupta, panch witness at Ex.10. He deposed that the panchnama was carried out in his presence and his statement was also recorded by the police. He deposed that when he reached to the place of incident at that time, the people had cordoned the accused and beaten him. He deposed that the father of the prosecutrix and other persons were beating the accused and they were speaking that the accused had committed rape upon prosecutrix and thereafter, police came and arrested the accused. In the cross-examination, this witness admitted that the police had read over panchnama and he had made his signature.
[18] The prosecution has examined P.W.6 Ms.S at Ex.16, who is the victim, wherein before recording her deposition, the learned Additional Sessions Judge has recorded the following questions answers in order to test her competency.
Q. What is (your) age ? A. 12 years.
Q. Are you studying ? A. Not studying.
Q. What are you doing now? A. Household work.
Q. Are you playing ? A. Playing.
Q. If you speak lie, what A. Punishment of hanging happens?
Thereafter, her deposition was recorded. She has deposed in her deposition that the incident took place at about 12.00 Noon. She deposed that the accused committed rape upon her. The accused had fallen down her on the floor and blood was also oozing. She further deposed that the accused pressed her, at that time blood was oozing. She deposed that after the incident, she was taken to the hospital by her father and operated there. She deposed that doctor asked her regarding the incident and thereupon, she narrated the incident. In the cross-examination, the prosecutrix denied that due to menstruation, the blood was oozing. She deposed that she was handicapped and she was walking with support of wooden railing. She has denied that due to fell down in the bathroom, the blood was oozing from her private part. She has denied that due to fell down, she sustained injury.
[19] The prosecution has examined P.W.7 Dr.Gaurang Somabhai Solanki at Ex.17. He has deposed that on 18.09.2007, he was on duty in Civil Hospital, at that time, one police constable Satish Manohar brought the accused along with police yadi at about 4.25 p.m. He deposed that while examining the patient, in history the patient has stated that on 18.09.2007 at about 9.00 a.m. he had gone to Rampraksh s house and had come after 5 minutes. The patient had not done any intercourse. He was beaten by the public with sticks, kike and fist blows at about 11.30 a.m. on 18.09.2007 and he complained about the pain in chest, abdomen, face, left hand and leg .
This witness has found the external injury (1) multiple contusion over anterior aspect of chest and posterior aspect of chest and abdomen verifying in sizes 6-20 c, x 2-6 cm x pink in colour; (2) diffuse swelling over left side of forehead cm x 4 cm. soft in nature association with abrasion 4 cm x 3 cm read in colour; (3) A contusion over left forehead 6 cm x 3 cm x pink in colour; (4) CLW over inner aspect of upper lip 1 ¿ cm x ¿ cm red in colour mucoral deep; (5) external genitals - (i) (N) sides, (ii) No external mark injury, (iii) No hydrocele or hemical or congenited abnormeliti, (iv) smegma - absent, (v) no blood or severe stain over pubic or external genital. No cross-examination to this witness by the defence.
[20] The prosecution has examined P.W.8 Gaurang Jagdishchandra Patel at Ex.19. He has examined the prosecutrix for determination of her age. While examining the prosecutrix, this witness asked her regarding the incident and she has given the brief history of the case that on date 18.09.2007 in morning when she was alone one person named Harishchandra come and close the door and had sexual intercourse with her against her will, girl s father came at home and seen the person and seeing crying girl understood the situation and caught the person and took him to police station. This witness examined the prosecutrix in order to determine her age and deposed that her weight was 26 kg. , height was 115 cm, less pubic hairs. areola and papilla were on the part of breast. He has also deposed that she has 28 permanent teeth. Ultimately, this doctor opined that the age of prosecutrix is 12 to 14 years. In the cross-examination, suggestion as regard to the prosecutrix was over 16 years of age was not accepted by this doctor.
[21] The prosecution has examined P.W.10 Dr.Rutuja Kandarp Desai at Ex.23. She has deposed that the prosecutrix was brought by the police constable for her physical examination. After physical examination, she has found that L/E on separation of labia minora 4 cm tear at fourchettie present, extending through posterior part of hymen upto post vaginal wall actively bleeding, bruising present over rt. Lateral margin of hymen. P/s. 4 cm size tear on posterior vaginal wall through which active bleeding was present. P/v. uterus anteverted small size firm mobile, regular, fem-ices free; procedure done : posterior vaginal, tear repair with vicry / 2-0. Ultimately, this doctor has opined that there were signs of recent vaginal penetration and signs consistent with history given. In the cross-examination, nothing worth has come out.
[22] The prosecution has examined P.W.9 Karsanbhai Rambhai Bhuva, P.I., at Ex.21. This witness has deposed that upon resuming his duty at Sachin Police Station and after obtaining medical certificate, F.S.L. report and other papers, he filed the charge-sheet before the competent court.
[23] The prosecution has examined P.W.11 Mahendrasinh Vajesinh Rathod, P.I., at Ex.26. He has deposed that on 18.09.2009, while he was on duty, the complainant along with her daughter came there and lodged the complaint and the signature of the complainant was taken in the complaint. He has deposed that the victim was sent to new Civil Hospital along with yadi as well as accused was also present, he was arrested and thereafter sent to the medical examination. He deposed that panchnama of scene of offence was carried out in the presence of two panchas. He has deposed that the officer of F.S.L., who, was present at the scene of offence, had taken the sample of blood from the ground for analysis. He has deposed that the panchnama of the clothes of the victim was carried out and recovered the same and statements of the witnesses were recorded. In his deposition, the prosecution has proved contradiction as well as Forensic Science Laboratory. In the cross-examination, he has deposed that it is not true that the complainant came for lodging of complaint regarding quarrel.
[24] The circumstance which the prosecution relies on the statement given by the accused to Dr.Gaurang Solanki, who examined him. This doctor noticed the injuries upon the accused - (1) multiple contusion over anterior aspect of chest and posterior aspect of chest and abdomen verifying in sizes 6-20 c, x 2-6 cm x pink in colour; (2) diffuse swelling over left side of forehead cm x 4 cm. soft in nature association with abrasion 4 cm x 3 cm read in colour; (3) A contusion over left forehead 6 cm x 3 cm x pink in colour; (4) CLW over inner aspect of upper lip 1 ¿ cm x ¿ cm red in colour mucoral deep. In order to prove the aforesaid injuries and resultant history given by the accused, the prosecution has examined Dr.Gaurang Solanki. In the deposition, the doctor has deposed that the history of the incident as well as injury narrated by the accused himself and accordingly, he has reduced to writing in the medical certificate at Ex.18.
[25] Learned advocate for the accused has contended that the history given by the accused regarding injury upon his body caused is inadmissible in evidence as accused was in police custody. This contention requires scrutiny.
[26] The admissibility is questioned on the ground that the statements are hit by Section 26 of the Evidence Act which prohibits confession made by a person whilst he is in the custody of the police officer . What is prohibited is only confession , and the embargo is not extended to the statements which do not amount to confession. Admissions can be proved as against the person who makes it, and Section 21 of the Evidence Act permits such admissions being proved. The contours of Section 21 are not bounded by limitations of the persons being in the custody of a police officer. What is a confession ? Neither the Evidence Act nor statutes on criminal defines confession. Privy Council, way back in 1939 in Narayana Swami v. Emperor, AIR 1939 PC 47, made the endeavour to explain the word confession as used in the Evidence Act. Lord Atkin who delivered the famous judgement in that case stated thus : The word confession as used in evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession.
[27] The Supreme Court adopted the aforesaid explanation as correct in Palvinder Kaur v. State of Punjab, AIR 1952 SC 354. In Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119, Supreme Court considered the question of severability of the accused s confession while in custody, one exculpatory and the other inculpatory. In the context, Supreme Court found it worthwhile to adopt the same line of thinking about the contours of confession and the principles followed in Palvinder Kaur s case were reaffirmed. The important decision on this subject, in view of the context in this case, is Kanda Padayachi v. state of Tamil Nadu, AIR 1972 SC 66. The subject dealt with in that decision is the admissibility of a statement made by an accused, in police custody, to a doctor regarding some minor injuries found on his person, to the effect that it was the deceased who at about midnight on July 10, 1969 had caused the injury on his the (sic) by biting him . The Supreme Court made reference to the case law on the subject including Pakala Narayana Swami s case and held that the statement in question did not amount to a confession, but only amounts to an admission of fact no doubt of an incriminating fact, and which established the presence of the appellant in the deceased room . The dictum has been laid down in para 13, AIR 1972 SC 66 of the judgment which reads thus :
It is thus clear that an admission of a fact however incriminating, but not by itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of Sections 24 to 26 of the Evidence Act.
[28] In view of the aforesaid dictum of the Hon ble Supreme Court, we have noticed that the accused whilst in police custody was taken to the New Civil Hospital, Surat for medical examination where he himself has admitted his presence at the scene of the offence and he himself has also explained for about aforesaid four injuries, found, upon his body, were inflicted by the public with stick, kick and fist blows at about 11.30 a.m. on 18.09.2007. The aforesaid statement made by the accused before the medical officer while his physical examination is in the nature of admission, nevertheless incriminating. The aforesaid statement of the accused neither admitted in terms of offence, nor at any rate substantially the statement of facts constitute the offence in itself.
[29] In view of the aforesaid clear position of law, we have no hesitation in recording the findings that so far as the history regarding his presence at the scene of offence and the injury inflicted upon by mob of persons is admissible in evidence.
[30] The defence has also raised the question regarding the competency as well as virtual admissibility of the evidence of the prosecutrix who is aged about 13 years and mentally retarded to some extend.
[31] In order to appreciate the aforesaid contention, we propose to firstly examine the determination of her age. On going through the deposition of Dr.Gaurang Patel Ex.19 along with medical certificate Ex.20 wherein the doctor deposed that her weight was 26 kg., height was 115 cm, less pubic hairs. areola and papilla were on the part of breast. He has also deposed that she has 28 permanent teeth. Ultimately, this doctor opined that the age of prosecutrix is 12 to 14 years. In the cross-examination, this witness has deposed that it is not true that prosecutrix was over 16 years of age.
In view of the aforesaid medical opinion as well as factual position and her radiological examination, we are accepting age of the prosecutrix between 12 to 14 years. Precisely, her age is proved to be below 14 years.
[32] Now let us examine the competency of the prosecutrix who is aged 13 years and having mentally retarded to some extent.
[33] For examination the competency of witness, whether he is competent to testify or not, the Indian Evidence Act has taken due care by making provision under Section 118.
Section 118 of the Act reads as under :-
S.118.
All persons shall be competent to testify unless 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.
Explanation.
- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the question put to him and giving rational answers to them.
[34] If we analyze the aforesaid section, it provides all persons are competent to testify, unless they are, in the opinion of the Court (a) unable to understand the questions put to them, or (b) to give rational answers to those questions, owing to (i) tender years, (ii) extreme old age, (iii) disease of mind or body, or (iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness.
[35] We are of the opinion that while the prosecutrix was put in the witness box, the learned Additional Sessions Judge was very much aware that she was minor as well as to some extent mentally retarded. Consequently, therefore, the prosecutrix was examined by the learned Additional Sessions Judge about her competency by putting certain questions more particularly as we discussed in detail in the deposition of prosecutrix and thereafter, learned Additional Sessions Judge was satisfied that the prosecutrix was competent to depose, she was examined as witness. We have also noticed that the deposition of the prosecutrix is not only corroborated in all material particulars but the prosecutrix has also sustained serious injury upon her private part, it is also established by the independent witnesses like two doctors. By no stretch of imagination, it is to be believed that due to quarrel regarding return of money with the accused, such injuries were self inflicted upon the prosecutrix to lodge the complaint against the accused. All the evidence in the nature of corroboration upon the say of the prosecutrix are firmly established against the accused which leaves no manner of doubt. In totality of facts and circumstances emerging out, we have noticed that even though the prosecutrix was infant and mentally retarded to some extent was capable of understanding the question put to her and she had given the rational answer to the question put to her. As noted above, regarding the incident whatever answer she gave, is corroborated by independent evidence. In the result, we also find her to be a competent witness.
[36] In view of the aforesaid peculiar facts and circumstances of the case, we are of the view that the prosecutrix was competent to testify and her deposition are admissible in evidence as she is competent to testify her version before the Court regarding happening of incident with her. In the result, the contention raised by the learned advocate for the accused stands rejected.
[37] We have noticed that after giving the complaint, the father of the prosecutrix himself has turned hostile before the Court and he has given the evidence that the accused had not committed rape upon her daughter, as a result of which the evidence of the prosecutrix as described above as well as evidence of three doctors along with other circumstances linking the accused with the commission of crime is available on record.
[38] We have noticed that the learned Additional Sessions Judge has properly appreciated the evidence on record and has rightly recorded the findings that the accused committed rape upon the prosecutrix. We do not find any infirmity in appreciation of the evidence and the finding recorded by the learned Additional Sessions Judge. Consequently, we not only agree with the findings recorded by the learned Additional Sessions Judge, but also we concur with the findings recorded by the learned Sessions Judge except regarding infliction of punishment. It was argued that no semen was found in the vagina of the victim or from any other place and, therefore, the accusation of rape must be disbelieved. The medical evidence, however, clearly supports recent penetration. Blood had come out from her vagina and soiled her clothes also. It is well established that for offence of rape mere penetration is sufficient and discharge is not required.
[39] We would like to summarize the incident and evidence on record pointwise as under undisputably the accused is hailing from native place of prosecutrix and having acquaintance with the family; on 18.09.2007 in the morning at about 9.00 due to loneliness of the prosecutrix: the accused came and committed sexual assault upon the prosecutrix, who is having 26 kg. weight only, as a result of which she sustained serious injury upon her private part as well as on her body also; soon after the incident, her father came along with the accused and the prosecutrix informed her father regarding incident and the accused came to be beaten by a mob of locality of village and was taken to the police station and police after making requisite formalities, accused as well as prosecutrix both were taken to new Civil Hospital and the aforesaid three doctors have recorded the history given by the prosecutrix and the accused which established the presence of accused at the scene of offence and version of prosecutrix regarding incident is also corroborated in all circumstances leading to the guilt of accused.
[40] Upshot of aforesaid discussion is that the conviction recorded by the learned Sessions Judge, we confirm the conviction and now we are also required to examine the appeal preferred by the State for enhancement of sentence awarded to the accused.
[41] The appeal presented by the State of Gujarat for enhancement of sentence would not detain us much in view of the detailed discussion made regarding the peculiar merits of the case as above. So as to consider the question of enhancement, we noticed that there is vast age difference between the accused and the prosecutrix almost double, the accused has exploited the situation of the infant prosecutrix, who is to some extent, mentally retarded and having weight of only 26 kg., for satisfying his sexual urge. It has also come on record that she was suffering from polio. She was not able to walk or move like normal child. She was brutally and violently abused by the accused for his physical pleasure. Admittedly, there is no affair; the accused having acquaintance with the family of the prosecutrix; the evidence of the prosecutrix is materially corroborated in all respect; considering the present trend of the legislature as well as judicial pronouncements in such cases; we are convinced that the learned Additional Sessions Judge has shown unnecessary leniency towards the accused and has inflicted minimum sentence provided under the Act. According to our view, the punishment inflicted by the learned Additional Sessions Judge is inadequate considering the age and the mental status of the prosecutrix and also the manner in which the accused had exploited an infant for satisfying his sexual urge, consequently the sentences inflicted by the learned Additional Sessions Judge for the offence punishable under Section 376 of the Indian Penal Code should be enhanced from 7 years simple imprisonment to 10 years rigorous imprisonment without altering other sentences inflicted upon the accused.
[42] In the result, Criminal Appeal No.374/2009 preferred by the accused is dismissed and Criminal Appeal No.597/2009 preferred by the State is allowed. The sentence of simple imprisonment of 7 years is enhanced to rigorous imprisonment of 10 years for the offence punishable under Section 376 of the Indian Penal Code. There should be no change in awarding fine and other sentences inflicted by the learned Additional Sessions Judge. Record & Proceedings be transmitted to the trial Court.
(AKIL KURESHI, J.) (R.P.DHOLARIA,J.) vijay Page 18 of 18