CR.A/1989/2004 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1989 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE AND 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 ? ========================================= GOVINDBHAI GIRISHBHAI ZALA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================= Appearance : MS SADHANA SAGAR for Appellant(s) : 1, MR UR BHATT, APP for Opponent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 26/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) CR.A/1989/2004 2/6 JUDGMENT 1. The appellant, who was original accused in Sessions Case No.34 of 2004 preferred this appeal challenging the conviction recorded by the learned Presiding Officer, 5th Fast Track Court, Nadiad on dated 30.10.2004 for the commission of offences punishable under Sections 363, 366 and 376 of the Indian Penal Code ('IPC', for short) and sentenced to undergo R.I for 3 years and fine of Rs.500/-, in default of payment of fine, S.I for 3 months, R.I for 5 years and fine of Rs.500/-, in default of payment of fine, S.I for 3 months and R.I for 10 years and fine of Rs.1000/- and in default of payment of fine, S.I for 6 months respectively. 2. The prosecution case in nutshell is that on dated 16.5.2003, at about 11 a.m., the accused kidnapped minor Rekhaben, aged about 11 years from lawful guardianship of her father and committed rape. Kalidas Sukhabhai, father of Rekhaben lodged the FIR in Balasinor Police Station. Police investigation was commenced, statements of material witnesses, including the prosecutrix Rekhaben were recorded. Both, prosecutrix-Rekhaben and accused were sent for medical examination. Medical Officer collected samples of vaginal swab, blood etc. of the prosecutrix and semen, blood of the accused. Samples were sent to FSL for necessary examination. After collecting materials for the purpose of lodgment of chargesheet, the chargesheet came to be filed in the Court of learned JMFC, Balasinor. As the offence was exclusively triable by the Court of sessions, the learned Magistrate committed the case to the Court of sessions, Kheda at Nadiad, which came to be registered as Sessions Case No.34 of 2004. CR.A/1989/2004 3/6 JUDGMENT 3. Learned trial Judge framed charge against the accused at Exh.4 for the commission of offences punishable under Sections 363, 366 and 376 of the IPC, to which the accused did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. After the completion of the oral evidence adduced by the prosecution, the learned trial Judge recorded further statement of the accused under Section 313 of the Criminal Procedure Code and the accused generally denied all the allegations levelled against him and stated that he was falsely implicated in this case. 3.1 The learned trial Judge after appreciating the evidence on record and after considering the submissions made on behalf of both the sides, recorded the conviction of the accused for the offences punishable under Sections 363, 366 and 376 of the IPC and awarded the sentence as hereinabove referred in this judgment. 4. We have heard the submissions made by learned advocate Ms.Sadhana Sagar for the appellant and learned APP Mr.Bhatt for the State and we have considered the record and proceedings of the trial Court in context of the submissions made on behalf of both the sides. 5. Learned advocate Ms.Sagar submitted that considering the evidence adduced by the prosecution in this case and more particularly the age of the prosecutrix – Rekhaben, medical evidence and the evidence in form of FSL report, the appellant is unable to challenge the conviction recorded by the learned trial Judge, and therefore, she fairly submitted that she does not challenge the conviction of the CR.A/1989/2004 4/6 JUDGMENT appellant – accused recorded by the learned trial Judge. However, she submitted that considering the age of the accused and the manner in which the offence came to be committed, the R.I of 10 years awarded by the learned trial Judge for the offence of rape is too harsh. The accused is a poor man and is in jail since last about 4 years. Thus, there are mitigating circumstances to reduce the quantum of sentence. Reliance was placed upon a case of Mohammad Zuber Noormohmad Changwadia v/s. State of Gujarat reported in 2000(1) GLR 396 and Shanabhai Chandubhai Vasava v/s. State of Gujarat reported in (2006)12 GHJ 185. 6. Learned APP Mr.Bhatt vehemently opposed this appeal and submitted that the sentence awarded by the learned trial Judge cannot be said to be arbitrary or de hors the material on record or shockingly disproportionate to the nature of offence. The discretion was correctly exercised by the trial Court. Learned APP Mr.Bhatt drew our attention that the appellant was convicted earlier in connection with the identical offences like kidnapping and rape and the appeal preferred by him challenging the said conviction and sentence, came to be dismissed by this Court. Therefore, the present one is a successive conviction, and therefore, there is no reason whatsoever to reduce the sentence as submitted on behalf of the appellant. 6.1 Since the conviction recorded by the learned trial Judge is not challenged, and therefore, it would not be necessary for us to re-appreciate or re-evaluate the evidence recorded by the learned trial Judge. Suffice it to say, that CR.A/1989/2004 5/6 JUDGMENT considering the evidence of prosecutrix-Rekhaben and the birth certificate, at the time of incident, she was aged about 11 years. Considering the medical evidence on record, together with the reports of FSL, the learned trial Judge rightly recorded the conviction of the appellant. 6.2 The learned trial Judge, while fixing the quantum of sentence, considered the submissions made on behalf of the accused and recording the reasons in the impugned judgment, the learned trial Judge fixed the quantum of punishment. We do not find any material to come to the conclusion that while fixing the quantum of sentence, the learned trial Judge illegally or arbitrarily exercised his discretionary powers. We also do not find that the sentence can be treated as harsh or shockingly disproportionate to the nature of offence. On the contrary, our attention was drawn to the fact that the appellant – accused was involved earlier in identical offences of kidnapping and rape, and Sessions Case No.270 of 2003 came to be tried against him, and he was convicted and sentenced in connection with such offences. Even, appeal preferred by the present accused in this Court came to be dismissed, bearing Criminal Appeal No.1990 of 2004. Under such circumstances, the present one can be said to be successive conviction. In other words, it cannot be said that there was no previous conviction, and therefore, the sentence be reduced. Therefore, there is absence of mitigating circumstance. 6.3 However, during the course of argument on behalf of the appellant, a request was made that the sentence imposed in connection with the two convictions, be ordered to CR.A/1989/2004 6/6 JUDGMENT run concurrently. However, the appellant – accused came to be convicted, though in connection with identical offences took place at different point of time and place, and in connection with those incidents, two different cases were tried against him, and nothing is shown to us that the sentence awarded in two different cases can be clubbed together and can be ordered to run concurrently, and even so far as the previous conviction is concerned, as stated above, the appeal preferred by this appellant in this Court came to be dismissed. Therefore also, there is no reason whatsoever to accept the submission made on behalf of the appellant that the sentence imposed in two different cases be directed to run concurrently. 6.4 We have gone through the rulings relied upon by learned advocate Ms.Sagar for the appellant. The facts of those case are totally different than the facts in the present case. The appellant – accused cannot be said to be teenager. Moreover, in none of the cases relied upon on behalf of the appellant, there was any previous conviction. 7. In the result, the appeal deserves to be dismissed. The appeal, therefore, stands dismissed. (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)