Manish Harshadbhai Solanki vs State of Gujarat

R.D. Kothari, J.—The appellant challenges the conviction awarded by the learned trial Court in Sessions Case No. 115 of 2008. The learned Additional District and Sessions Judge, Anand was pleased to convict the present appellant for the offence under Sections 365, 376 and 506(2) of IPC. Learned trial court has imposed sentence of imprisonment for the period of 7 years for the offence u/s 376 of IPC, sentence of imprisonment for the period of 2 years for the offence u/s 365 of IPC and sentence of imprisonment for the period of 1 year for the offence u/s 506(2) of IPC. All the sentences are simple imprisonment. Further, the trial court has ordered that all the sentences be run concurrently. Shortly stated facts are thus:- The victim had filed a complaint on 19.01.2008. She says that on previous date i.e. 18.01.2008, she left her house to attend the school. In her way to school, the present appellant caught hold of her hand and forcibly taken her in one rickshaw. The appellant thereafter, had said to have asked rickshaw to take them to Verakhadi. They came near Verakhadi at river Mahisagar. They stopped there and appellant had said to have made proposal to the victim for marriage. Victim had said to have denied. Thereafter, they said to have came at Tulsi talkies of Anand in another rickshaw. From there, they said to have been to Chaklasi village in an another rickshaw. At Chaklasi, the appellant said to have taken the victim to the residence of appellant''s relative. There, one advocate was called for. Talks of marriage had taken place there and victim had said to have denied for marriage. Victim alleged that advocate had left the house saying that victim''s age is not of marriageable age. The relative of the appellant had said to have asked the appellant to leave their house. Thereafter, the appellant had said to have brought the victim to nearby field. It is say of the victim that in the field the appellant had committed forcibly sexual intercourse with her. Thereafter, they came to village Chaklasi in one rickshaw. They came to railway station and then Nadiad. From Nadiad they came back to Anand. At Anand Station, as the appellant had left the victim for sometime, at that time one Diwanbhai who is neighbourer of the victim''s family had said to have came there and he had said to have stated to the victim that her parents are worrying about her. Victim accompanied Diwanbhai and came back to her parents house. Later on she came to police station along with her father and had lodged the complaint.

The appellant was tried for the offence under Sections 365, 376 and 506(2) of IPC. Before the learned trial Court, the prosecution had examined 11 witnesses. Of them 5 witnesses are punch witness, 4 are police personnel, one victim and one Doctor are examined by the prosecution. No other oral evidence was led by the prosecution.

Heard the learned advocate Ms. Rekha H. Kapadia, for the appellant and Ms. H.B. Punani, learned APP for the State - respondent.

Learned advocate Ms. Rekha H. Kapadia, for the appellant has drawn attention of the Court to page 235 of the paper-book. It is birth certificate of the victim. The birth date of victim is 31.12.1988.

The incident had said to have occurred on 18.01.2008. Even as per the case of prosecution, victim was aged over 19 years at the time of incident. It was pointed out that accused was aged about 20 years at the time of incident.

In order to appreciate the case of prosecution, victim''s evidence was read. Upon reading the victim''s evidence and considering the other material on record, it appears that present case is case of - consent. Parents of victim has not come forward to depose before the Court nor father of the victim has shown any interest to lodge the complaint. Further, narration of incident/story as stated above in detail gives impression that it is a case of consent. Further, learned advocate for the appellant also drawn attention to letters said to have written by victim to the present appellant (Ex.32, page 179). Say of the victim/prosecution as to the commission of rape is not at all in nature of inspiring confidence.

In the circumstances of the present case, proviso of section 376 is attracted. Considering the facts and circumstance of the case and material on record, end of justice would be served if the sentence is reduced to the period of sentence already undergone. At the time of hearing learned APP made available the jail remarks. It shows that against the substantive sentence of imprisonment of 7 years, the appellant has already served sentence of imprisonment for the period of 3 years 9 months and 2 days as on 02.12.2013.

Considering the facts and circumstances of the case as referred above, and considering the sentence of imprisonment served by the appellant, it appears to be just and proper to reduce the sentence of period already undergone. In view of above discussion, present appeal is partly allowed. The judgment and order of conviction dated 14.07.2010 passed by the learned Additional District and Sessions Judge, Anand in Sessions Case No. 115 of 2008 is not interfered. However, the order of sentence is modified and reduced to the extent of sentence of imprisonment already undergone by the appellant. The appellant, if not required in connection with any other offence, be set at liberty forthwith.