IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 17 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- PRAVINBHAI LALLUBHAI VAGHELA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 17 of 2004 MR MC BAROT for Appellant No. Ms Harsha Devani, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE AKSHAY H.MEHTA Date of decision: 22/09/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE AKSHAY H.MEHTA) The appellant has challenged the judgment and order of conviction and sentence passed against him by the Addl.Sessions Judge and 5th Fast Track Court, Nadiad dated 6.11.2003 in Sessions Case No.267 of 2002. The appellant has been convicted for offence punishable under section 363 of IPC and he has been sentenced to suffer two years' rigorous imprisonment and to pay fine of Rs. Three thousand. In default, further rigorous imprisonment for three months. He has also been convicted for offence punishable under section 366 of IPC and he has been sentenced to suffer rigorous imprisonment for two years' and to pay fine of Rupees Three thousand. In default, further rigorous imprisonment for three months. Lastly, he has been convicted for offence punishable under section 376 of IPC and has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rupees Five thousand and in default, further rigorous imprisonment for three months. All these substantive sentences are ordered to run concurrently. It is also directed that out of the amount of fine, if paid, Rupees Five thousand shall be paid to the prosecutrix, girl-Jankhana after the period of appeal. 1.1. We have admitted this appeal to final hearing by order dated 3.9.2004 and we have also called for the Record and Proceedings of the case by the said order which has already arrived. 1.2. The appellant has preferred Criminal Misc.Application No.7497 of 2004 seeking temporary bail for 30 days for the purpose of agriculture and he has also filed Criminal Misc.Application No. 8864 of 2004 through his Advocate Mr M C Barot seeking suspension of the substantive sentence and grant of bail pending hearing and final disposal of the appeal. While considering the question of grant of bail, we have today, perused the Record and Proceedings and the judgment of the trial court. Mr M C Barot, learned Advocate for the appellant has fairly conceded that he has no case to challenge the order of conviction recorded by the trial court with regard to the aforesaid offences. However, he has made grievance with regard to the harshness of sentence imposed for the offence under section 376 of IPC. Since we have found some substance in his grievance, considering the facts and circumstances of the case, prima facie, with the consent of the learned Advocates appearing for the appellant as well as for the respondent State, we have taken up the appeal for final hearing today itself. 2. The facts of the case in a nutshell can be stated as under: On 8.10.1998 at about 9.30 a.m. the appellant enticed the daughter of Chandrakant Patel namely; Jankhana aged about 15 years at that time and removed her from the lawful guardianship of her parents. It was further alleged that despite frantic efforts in searching the girl, the father could not trace her out. Complaint was duly lodged with the police. It appears from the record that the appellant and girl Jankhana had stayed at various places in the City of Ahmedabad itself for some time and thereafter they had shifted to Ankleshwar. It further appears that during the time they stayed together, the girl conceived thrice. During the first pregnancy, there was a miscarriage. The second child was born and when she was aged three months, she was given to the sister of the appellant. During the third pregnancy, the appellant was apprehended when they had returned to their native place i.e. Surasamal village in Kheda district. On apprehension of the appellant, the police carried out further investigation during which they recorded statement of the girl, got her medically examined etc. Ultimately, on completion of the same, charge sheet was submitted in the Court of learned Judicial Magistrate First Class, Nadiad, who in turn committed the case to the Court of Sessions for offence under section 376 of IPC which is exclusively triable by a Court of Sessions. 2.1. To establish its case, the prosecution has examined 10 witnesses and has also placed reliance on documentary evidence such as birth certificate of the girl, various panchnamas, medical certificates etc. and also the report of the Forensic Science Laboratory. After completion of recording of oral evidence, further statement under section 313 of the Criminal Procedure Code, 1973 was recorded. The accused-appellant has denied all the allegations levelled against him by the prosecution. 3. The learned trial court, by order dated 6.11.2003, has held the appellant guilty of offence punishable under sections 363, 366 and 376 of IPC. After hearing the appellant on the question of sentence, on the same day, the learned trial Judge has imposed the sentences which have been referred to above for these offences. It is this judgment and order of conviction and sentence passed by the trial court that has been challenged in this appeal. 4. So far as the conviction recorded by the trial court is concerned, for the aforesaid offences, Mr M C Barot, learned Advocate for the appellant has fairly conceded that he has no case and he has accepted the order of conviction passed by the trial court. However, according to him, considering the facts and circumstances of the case, the sentence of rigorous imprisonment for life is very harsh and it is required to be reduced. We have also heard Ms. Harsha Devani, learned APP on the question of sentence. She has submitted that looking to the tender age of the girl and the age difference between the appellant and the girl, the imposition of sentence by the trial court is just and proper and that the order is not required to be disturbed. 4.1. We have carefully gone through the Record and Proceedings which is available with us today. We have also carefully gone through the judgment of the trial court and we have duly considered the submissions made by the learned Advocates. It appears that at the time when the incident took place, Jankhana was aged only 15 years. She was a school going girl at that time. The appellant, who, at that time, was aged 26 years, enticed her and removed her from the legal guardianship of her parents. It however, appears that though minor, the girl was not taken away forcibly by the appellant. She had gone on her own, of course she was lured by the appellant. It further appears that between 8.10.1998 and 13.4.2002, they had stayed at Ahmedabad and Ankleshwar as husband and wife and they had also established physical relationship resulting into three pregnancies of the girl, details of which have been referred to above. By the time the appellant was arrested, the girl had already become major. It further appears from the record that when they returned to their native place, may be with a hope that everything must have settled down by then, the appellant was apprehended. In the trial, the girl has been examined and she has obviously stated against the appellant but it is difficult to believe that all this time, she had stayed with the appellant only because of threats given by the prosecuting agency. It appears that things are just the other way around and she had deposed so under someone's influence or threat. agency. Be that as it may, the fact remains that she has fully cooperated with the appellant, but for the minor age of the girl at the time of elopement for some period thereafter, there would not have been any offence committed by the appellant. Considering the peculiar facts and circumstances of the case, we are of the opinion that the sentence of imprisonment for life imposed by the trial court is grossly disproportionate to the nature of the act and the resultant offence committed by the appellant. No doubt, the offence is under section 376 of IPC and at the time when the girl was kidnapped, she was aged 15 years only, but considering the totality of circumstances of the case, it appears to us that imposition of sentence for a term of five years, instead of imprisonment for life, would meet the ends of justice. 5. In view of the aforesaid, the appeal is partly allowed. We maintain conviction of the appellant for offence punishable under section 376 of IPC. However, we alter the term of sentence from that of imprisonment for life to 5 years R.I. We maintain the conviction and order of sentence for other offences. We may also clarify that the order with regard to sentence to run concurrently, will rermain the same and whatever benefit of set off that will be available to the appellant shall be given. Muddamal to be disposed of in accordance with the direction of the trial court. [Kshijit R Vyas, J.] [Akshay H Mehta, J.] msp