CR.A/826/1997 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 826 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= STATE OF GUJARAT - Appellant Versus RANAJI MANSUNGJI THAKOR - Respondent ========================================================= Appearance : MR UR BHATT, ADDL.PUBLIC PROSECUTOR for Appellant. MR ALPESH G DODIA for Respondent, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 14/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/826/1997 2/5 JUDGMENT This is an appeal preferred by the State of Gujarat under Section 377 of the Criminal Procedure Code, praying for enhancement of sentence awarded to the respondent by the Trial Court by judgment and order dated 25th June, 1997, rendered in Sessions Case No. 19/1997. 2. The respondent was tried and convicted for the offences punishable under Sections 363, 366 & 376 of the Indian Penal Code and was ordered to undergo R.I. for a period of 3 years with fine of Rs. 500/-, R.I. for 5 years with fine of Rs. 1000/- and R.I. for 5 years with fine of Rs. 1000/-, for the said offences respectively, with a relevant provision for further imprisonment in the event of default in payment of fine. 3. We have heard learned A.P.P. Mr. Bhatt for the appellant. 4. An information came to be lodged by Ghemarji Hiraji Thakarda on 18.6.1995 at about 5.00 p.m., at Chhapi Police Station about missing of his daughter CR.A/826/1997 3/5 JUDGMENT Bhikhiben aged about 14 years from 22nd May, 1995. An occurrence report entry was made by number 10/95 and later on converted into F.I.R., when Bhikhiben was found from Ahmedabad and informed that she was taken away by the respondent by alluring her of marriage and happy life. On the basis of this, F.I.R. was registered on 6.8.1995. Investigation was made and charge sheet came to be filed. The case was committed to the Court of Sessions and Sessions Case No.19/1997 was registered. The charge was framed against the respondent at Exh.4 for the said three offences, to which he pleaded not guilty and he claimed to be tried. The Trial Court on the basis of the evidence, recorded conviction for the said offences by the judgment impugned and awarded sentence as stated in the earlier part of the judgment. 5. The learned Additional Public Prosecutor contended that the sentence awarded is unduly lenient and the discretion is not properly used by the learned trial Judge while awarding sentence. The victim was a minor girl and, therefore, the trial Court ought to have awarded at least the minimum CR.A/826/1997 4/5 JUDGMENT punishment prescribed by law. 6. Upon examining the judgment, particularly the reasoning part, and examining the evidence, we find that the prosecutrix was about 15 years of age at the time of the incident. It appears that she had moved and stayed with the respondent for a long time. It also appears from her evidence that she had gone with the respondent willingly and was enjoying physical relationship willingly. However, in view of the provisions contained in Section 375 of the Code of Criminal Procedure, since she is below 16 years of age, her consent becomes irrelevant. But, keeping this aspect in mind, the trial Court has used its discretion and has awarded punishment as stated hereinabove. We are of the view that in the facts and circumstances of the case, it cannot be said that the discretion has been used in arbitrary manner or that undue leniency is shown towards the respondent so as to call for interference by this Court in its appellate jurisdiction. 7. We may also record that the conviction is dated 25th June, 1997 and the respondent has undergone the CR.A/826/1997 5/5 JUDGMENT sentence and has been released from the prison about 10 years back on 7.12.1998. 8. In view of what is stated hereinabove, the appeal must fail and stands dismissed. [ A.L. Dave,J.] [ J.C.Upadhyaya,J.] (patel)