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Judgment
K.S. Jhaveri, J.—By way of this appeal, the appellant original accused has challenged the judgment and order of conviction dated 12th July, 2005 passed by the learned Additional Sessions Judge, Court No. 7, City Civil and Sessions Court, Ahmedabad, in Sessions Case No. 320 of 2004, whereby the learned trial Judge has convicted the appellant, original accused for the offence u/s 376 of the Indian Penal Code with fine of Rs. 10,000/- and in default of payment, further sentenced to suffer rigorous imprisonment for two years. Learned trial Judge further directed to pay an amount of the Rs. 9,000/- to the parents of victim girl. The appellant, original convict was also given the benefit of setoff. The facts in a nutshell are as under;
1.1. The complainant herein, Shantaben Manharbhai Chavda, was residing with her husband and two children namely Bhavesh, aged about five years and daughter Kusum aged about 2 years near Gita Mandir opposite Chipa Kabrastan in house No. 34 of Vis Ordi Ni Chawal. Her brother-in-law namely Ratilal was also lived in the same Chawl along four children accused Sanjay is the second son of her brother-in-law.
1.2. The alleged incident is said to have taken place on 27.5.2004. On the fateful day, while the complainant was at home with her child, Kusum, accused-Sanjay, came there and offered to take her daughter out for chocolate. After some time when Sanjay did not come back the complainant went out to look for them with her sister-in-law, who had come from her matrimonial home. But they did not find them and they came back to home. However, at about 7.30 p.m. Sanjay, came back with Kusum and handed over the child to her sister-in-law. On having found her nicker wet the complainant removed the nicker of the child. They found blood stained on the nicker of the girl. The child was also not normal and was crying. Thereafter, they took her to the private doctor and from there to L.G. Hospital. On having been realized that her daughter had been raped, the complainant had filed the complaint against Sanjay, accused herein. After the necessary investigation was carried out and the appellant came to be arrested. On completion of investigation, charge-sheet was filed. Since the case was Sessions triable, it was committed to Sessions Court, Ahmedabad. The appellant pleaded not guilty and therefore, charge was framed and trial was initiated.
1.3. During the trial, the prosecution examined as many as 10 witnesses. Kantaben Dungarbhai Chavla was examined as PW 1 at Ex. 7, Naranbhai Manubhai Prajapati (Panch) as PW 2 at Ex. 8, Vinubhai Nanaji Jhala (Panch) as PW 3 at Ex. 12, Hansaben Sureshbhai Solanki (Paternal aunt of victim) as PW 4 at Ex. 17, Dungarbhai Gandabhai Chavla (father of victim) as PW 5 at Ex. 18, Dr. Ghanshyam C. Sagar (private practitioner) as PW 6 at Ex. 20, Dr. Jayantibhai Virjibhai Satapara (Assistant Police Surgeon) as PW 7 at Ex. 21, Dr. Behram Sarosh Ankleshwaria (Head of Gynec Department L.G. Hospital) as PW 8 Ex. 24, Bharatbhai Popat Lal Thakkar (panch) as PW 9 at Ex. 27, Jorabhai Jivrajbhai Desai (Investigating Officer) as PW 10 at Ex. 29.
1.4. The prosecution has also relied on the following documentary evidences:
1.5. At the end of trial, the Court below recorded further statement of the accused u/s 313 of the Criminal Procedure Code and ultimately, passed the impugned judgment and order of conviction, which is under challenge in this appeal.
Learned Counsel for the appellant contended that learned trial Court without appreciating the evidence on record has passed the impugned judgment and award of conviction. He further conceded that even if it is presumed that the accused has attempted to commit the offence of rape then also the conviction awarded by the trial Court is on higher side. Therefore, he prayed to reduce the sentence from maximum imprisonment to minimum imprisonment.
2.1. Learned Counsel for the appellant has relied upon a decision of the Apex Court in the case of Sakshi Vs. Union of India (UOI) and Others, .
Learned APP supported the impugned judgment and order and submitted that the prosecution has produced sufficient evidence on record to establish the guilt of the appellant. He therefore, submitted that the conviction awarded by the Trial Court is just and proper and does not require any interference by this Court.
We have heard learned Counsel for the respective parties and perused the material on record.
4.1. It reveals from the record that in the complaint the appellant has stated that she had trusted accused Sanjay and agreed to send her daughter with him on his saying that he would take her daughter out for chocolate, But, after some time when they did not come back, the complainant with Hansaben her sister-in-law went out to look for them, but they could not find them. At about 7.30 p.m., accused-San jay returned back with child and handed over the child to them. As the nicker of the child was found wet, the complainant removed the same. While removing the nicker, they found that there was blood stain on the nicker and her private part was bleeding. Thereafter, they immediately rushed to Dr. Sagar who has his clinic opposite burial ground (Kabrastan). Accused Sanjay''s mother also accompanied them, when the husband of the complainant came at around 8.30 p.m. they had taken the child at L.G. hospital, where she was admitted as indoor patient for 10 days. It is also stated in the complaint that the date of birth of the child could not be registered but an affidavit by the husband of the complainant on stamp paper of Rs. 20 on dated 3.1.2004 i.e. nearly five months prior to the said incident. The girl had worn red coloured jercy and shorts at the time of incident and she identified the cloths as well as the accused before the Court.
4.2. PW 4, Paternal aunt of victim, Hansaben in her deposition at Exh. 17 has supported the case of the prosecution. She stated that at about 5.30 p.m. when she reached at her brother''s home, her brother had gone out for the labour work and her sister-in-law, Shantaben was present in the house. When she inquired about Kusum, she replied that she had gone out with Sanjay. Thereafter, she went to her sister-in-law''s home and returned back to her brother''s house again at 6:30 p.m. When she came to know that Sanjay had not returned till then, she went with her Bhabhi-complainant to look for them. After some time, accused-Sanjay came back and handed over the girl in her hands. It is also deposed by PW 4, that when she inquired from Sanjay as to where he had taken the child, he merely replied that he took her with him just to play with her. It is also deposed by Hansaben, that she took the girl from the accused and gave water to the her as she was very perplexed and she found blood stain on the nicker and her private part was bleeding. Thereafter, they took her to Dr. Ghanshyam''s clinic where she was given medicine and was advised to go to L.G. Hospital, where she was admitted in Gynec Ward for 10 days. The cloths of Kusum which was wearing was identified by PW 4, and also identified her cousin i.e. accused.
4.3. Even, PW 5, Dungarbhai Gandabhai Chavda (Ex. 18), who is father of the victim in his deposition said that when he returned at around 8.00 p.m., he rushed to the clinic where his wife and sister, Hansa had gone with his daughter. His wife had narrated the entire story to him and thereafter, Kusum was taken to L.G. Hospital. Sanjay''s mother as well accompanied them.
4.4. PW 10, Jorabhai Jivrajbhai Desai, who is P.I. Kagdapith Police Station, in his deposition has stated that he received the Vardhy from PSO, Kagdapith at 1.55 that a Vardhy was received from L.G. Hospital of two years daughter of Shantaben Chavda having been raped. Thereafter, he rushed to L.G. Hospital where he found Shantaben and her sister-in-law and came to know that the daughter of the complainant was under treatment. Shantaben lodged the complaint which was sent to the PSO, Kagdapith for registration. Thereafter, he immediately went to the residential place of the lady and recorded the statements of the neighbours.
4.5. The medical evidence of Dr. Ankleshwaria, who treated the victim at L.G. Hospital strongly supported the version of the prosecution.
4.6. PW 8 Dr. Behram Sarosh Ankleshwaria is a Gynecologist and is the Head of Gynecology Department at L.G. Hospital since 1980 in his deposition stated that the injury certificate was issued by Dr. Arpita Dave, who was his student and she did so under his direct supervision. The medical certificate also proves that the rape has been committed on the victim.
In view of the facts and circumstances narrated hereinabove, it can not be gainsaid that the accused Sanjay has not attempted to commit rape on the victim. The prosecution has proved its case beyond reasonable doubt. The judgment impugned in the present appeal does not warrant any interference.
We have gone through the decision relied upon by learned Counsel for the appellant and find that the decision relied upon by learned Counsel for the appellant is not applicable to the facts of the present case.
The factual scenario goes to show that the accused had tried to commit rape and in fact has not committed the rape that much is the change which has permitted us to look into the provisions of Section 375 read with Section 376 of the IPC.
Considering the provisions of law and considering the factual aspect that the minor child, aged just three years was a close relative of the accused and accused was a young person of 18 years of age and therefore, looking to the provisions of law and the facts in the present case, though while confirming the conviction it would be relevant to substitute the sentence as far as punishment is concerned. In that view of the matter, we are of the opinion that a sentence of 10 (ten) years rigorous imprisonment by confirming the conviction would meet the ends of justice. For the foregoing reasons, the appeal is partly allowed. The judgment and order of conviction dated 12th July, 2005 passed by the learned Additional Sessions Judge, Court No. 7, City Civil and Sessions Court, Ahmedabad, in Sessions Case No. 320 of 2004 is upheld and the substantive sentence imposed by the learned trial Judge is modified and reduced to the extent that the appellant now shall undergo rigorous imprisonment for 10 (ten) years instead of life imprisonment, confirming the in default punishment and keeping the rest of the part of the judgment and order of conviction and sentence unaltered. If the appellant has already served the aforesaid period of sentence of ten years, he shall be set at liberty forthwith, provided he is not required by the Jail Authority for any other purpose. R & P, if any, be sent back forthwith.