Tribhovan @ Tilo Rayjibhai Bhoi vs State Of Gujarat & Anr

A.S. Supehia, J

The present application has been listed in view of the communication addressed by the Superintendent of Godhara Sub – Jail to the Registry seeking opinion from this Court for consideration and granting remissions to the convict since he has completed 14 years, 5 months and 6 days of sentence on 13.7.2023. Thus, as on today the convict has completed approximately 15 years of sentence. Such remission has been sought in view of the policy of the State Government dated 23.1.2014 or the prevalent policy of the State Government framed fro granting remission to the convicts and in light of the provisions of Section 433 (2) and 433- A of the Criminal Procedure Code, (for short, “the Cr.PC”).

The registry has placed the matter in view of the circular dated 27.6.2019 ordered by Hon’ble the acting Chief Justice.

The Division Bench vide judgment dated 28.4.2014 passed in Criminal Appeal No. 1283 of 2009, which was filed by the convict. After analyzing all the evidence threadbare has confirmed the conviction and sentence recorded by the trial Court. The fact as recorded by the Division Bench suggests the fact that the convict had raped the victim, who was slightly more than 12 years of age and the same has been recorded in Para Nos. 22, 28, 29 and 30, which are as under:

“22. We have gone through the evidence given by the Doctors before whom the victim was examined. It appears from their deposition as well as the report produced by those persons that as the incident occurred more than one month before her examination, there was no mark of recent injury. However, her hymen was broken. It also appears from the evidence on record that the victim initially did not disclose the fact of rape to her mother or to her aunt but only complained of bleeding. These two ladies were under the impression that she was under menstruation for the first time but subsequently, as bleeding persisted, first a Homeo Doctor, viz. PW. No.9 Dr. Lathiya gave her medicines. The said Doctor, however, has admitted that he did not examine her internally. However, as the bleeding having continued, the real fact was disclosed by the victim to her aunt and mother, as a result, there was delay in making complaint before the police and consequent medical examination under the supervision of the police. Even at that point of time, slight injury of the size of 1.5 x 2 cms. on the left side of the private part of the victim was observed. The other injury was on the vulva. Once we find from the medical evidence that she was aged slightly more than 12 years and not only her hymen had been broken but other injuries were also found, there is no cogent reason to disbelieve the version of rape alleged by the victim, when even her menstruation cycle had not yet started.

Mr. Upadhyay, the learned advocate appearing on behalf of the appellant, however, strenuously contended that the delay in lodging the FIR is fatal for the prosecution in this case. We have already pointed that this is a case where a 12 years old girl was returning home alone in the evening after delivering milk, was dragged at the point of a knife and was raped, and thereafter the accused further threatened her not to disclose the fact to anybody. We also cannot lose sight of the fact that in the village area, when such an incident of rape occurs and the victim is a girl of 12 years, guardians would hesitate to make a complaint. In the case before us, the fact that the victim was injured has been well established from the medical evidence of the Doctors, and in the absence of any evidence indicating animosity of the family of the victim towards the accused or his family, we hold that the version of the victim was correct. We have already pointed out that no suggestions were given to the victim in cross-examination that she was not dragged by the accused or that she was not threatened, and by giving only a one line suggestion that the victim was telling a lie, the burden discharged by the prosecution has not been dislodged.

Lastly, Mr. Upadhyay submitted that the accused being a young man aged 20 years, the sentence for life imprisonment should be reduced.

After taking into consideration the fact that a young girl aged 12 years has been raped taking advantage of darkness in the night at the point of a knife, we find that such a desperate person should be dealt with severely, and the learned Sessions Judge has rightly passed the order of sentence of life imprisonment.”

We have perused the facts, as recorded by the Division Bench and also by the trial Court. The same would reveal that at the time of offence, the accused was 20 years of age. Thus, looking to the age of the accused, who was 20 years at the relevant point of time and since he has completed more than 15 years of sentence and also in the light of facts recorded by the Division Bench, we are of the considered opinion that the case of the convict is required to be considered for remission under the provisions of Section 433- A of the Cr.PC as per the prevalent policy of the State Government.

Accordingly, we are of the opinion expressed by us, the case of the convict may be place before the Committee, for appropriate consideration.