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Judgment
A.J. Desai, J.
1.0. By way of present appeal u/s 374 of Code of Criminal Procedure, 1973, original accused has challenged the judgment and order dated
11.12.2009 passed by learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 3, Jamnagar in Sessions Case No. 136 of
2007 by which the learned Sessions Judge has convicted the appellant for the offence punishable under Sections 363, 366 and 376 of Indian Penal
Code. (for short "" the IPC"") and awarded 4 years rigorous imprisonment with fine of Rs. 500/- in default of payment of fine, further simple
imprisonment of one year, 5 years rigorous imprisonment with fine of Rs. 500/- in default of payment of fine, further simple imprisonment one year
and 7 years rigorous imprisonment with fine of Rs. 1000/- in default of payment of fine, further simple imprisonment of one year respectively. Brief-
facts emerges from the record are as under:-
2.1. That one Rajesh Anantray Rasputra registered a Janva Jog entry with Panchkoshi ''B'' Division Police Station on 03.09.2007 and declared
that his minor daughter whose date of birth is 18.11.1991 is missing. Subsequently, on 13.09.2007 an FIR was lodged by said Rajesh Ananray
Rasputra alleging against the appellant accused that his daughter has informed about the offence committed by him after returning from his company
on 12.09.2007. The FIR was lodged at the same police station for the offence under Sections 363, 366 and 376 of the IPC. It was alleged in the
FIR that his minor daughter was missing since 03.09.2007 and was in company with the accused who was his neighbour and was residing with his
family. It was categorically alleged in the FIR that the appellant accused as well as his daughter were talking with the father on mobile phone. He
was requesting his daughter to return but he was informed that the accused had given assurance that he would marry with his daughter. He did not
lodge FIR having apprehension to lose his reputation in society. His daughter explained to him about the circumstances under she was in company
with the accused.
2.0. Pursuant to the FIR, police officer started investigation arrested accused and thereafter filed charge sheet in the Court of learned Additional
Senior Civil Judge and Judicial Magistrate First Class, Jamnagar. Thereafter, as the case was exclusively triable by the Sessions Court, the same
was committed to the Court of learned Additional Sessions Judge, Jamnagar u/s 209 of Cr.P.C. The case was numbered as Sessions Case No.
136 of 2007.
3.0. The charges were framed against the accused at Exh. 5 on 11.01.2008. On denying the charges by the accused, the learned Sessions Judge
proceeded further with the trial.
4.0. Prosecution examined 26 witnesses including the complainant, the prosecutrix, three workers and co-members and other witnesses including
police witnesses.
5.0. The learned Sessions Judge after considering the depositions of witnesses and after examining the documentary evidences which were proved
by the prosecution, found that the appellant was guilty of having committed offences u/s 363, 366 and 376 of the IPC and convicted for the same
and sentenced as stated hereinabove. Hence, the present appeal.
6.0. Mr. Tushar Sheth, learned advocate appearing for the appellant accused at the outset submitted that as far as conviction recorded by the trial
Court is concerned, appellant does not want to challenge the same. However, he has requested to reduce the sentence imposed by the trial Court.
He submitted that fine of Rs. 11000/- as directed by the trial Court was already paid by the appellant accused.
7.0. In support of his submission about reduction of sentence, he has taken me through the depositions of complainant i.e. Rajesh Anantray
Rasputra PW 1 (Exh. 12), prosecutrix PW 2 (Exh. 16) as well as depositions of 4 doctors who are examined PW 3, 4, 5 and PW 17 at Exh. 29,
37, 42 and 78 respectively. He has also drawn attention of Exh. 25 which are 83 letters written by the prosecutrix. He has also relied upon the
statement recorded by the accused u/s 313 of the Cr.P.C. by which it was stated by him that though time and again he had asked the prosecutrix
not to keep relation with him since he was married person, the prosecutrix was compelling him to keep relation, otherwise she may consume
poison. By relying upon aforesaid evidence he submitted that he had never compelled the prosecutrix to keep relation with him as admitted by the
father of the prosecutrix as well as by the prosecutrix herself and therefore, lenient view may be taken in the case. He submitted the appellant has
undergone sentence of more than 6 years and 6 months. He further submitted that even while undergoing sentence he was released on furlough
leave and he surrendered in time before the jail authority and no untoward incident is reported against the appellant accused when he was released
on furlough leave.
8.0. On the other hand, Ms. Jirga Jhaveri, learned Additional Public Prosecutor has submitted that prosecutrix is minor girl, her date of birth is
18.11.1991 and therefore incident took place on 03.09.2007, the prosecutrix was below 16 years of age and therefore, serious view is required
to be taken and there is no need to reduce the sentence imposed by the learned Trial Court.
9.0 I have gone through the depositions of the complainant Rajesh Anantray Rasputra-PW 1 (Exh. 12). On entire reading of deposition it amply
makes clear that he was aware that though his daughter was below 16 years she had some relation with the accused. He has admitted in his chief
examination itself that prosecutrix, when she was in company with the accused, used to call him frequently. Though he was aware that the
prosecutrix was in company with the accused, he did not inform the investigation agency who had recorded Janva Jog entry on 03.09.2007. It also
appears from his deposition that even his friend who is resident of Morbi had talked with him that accused as well as prosecutrix were in Morbi
and were asking the complainant to deposit some amount in the account since the prosecutrix and the accused had no money with them. It appears
that when the accused along with the prosecutrix were found on 12.09.2007 at Morbi, the complainant did not lodge the FIR however waited for
the next day and filed the complaint on 13.09.2007. He has admitted in his cross-examination the 83 letters/chits at Exh. 25 supplied by him with
the police.
10.0 Considering the deposition of prosecutrix she has admitted that she was in love affair with the accused and there was quarrel with the wife of
the accused about the same. He has admitted that she was regularly visiting the house of the accused. She remained in company with the accused
from 03.09.2007 to 12.09.2007 and she agreed for physical relation on the assurance given by the accused that he will marry with her in future. I
have gone through 83 letters at Exh. 25 and the said details are reflected in the present judgments. The list of the letters written by the prosecutrix
suggested that she was in love affair with the accused and insisted the accused to leave the city in her company.
11.0 Since the conviction is not challenged I am not dealing with medical aspect of the matter with regard to age of the prosecutrix.
12.0 The learned Additional Public Prosecutor has placed on record the jail record of the convict. It appears that the appellant has undergone
sentence of 6 years and 6 months. Considering the sentences undergone by the appellant accused I am of the opinion that he has sufficiently
undergone the sentence for the aforesaid offences. Therefore, the appeal is partly allowed. The maximum sentence of 7 years imposed by the
learned Additional Sessions judge and Presiding Officer, Fast Track Court No. 3, Jamnagar in Sessions Case No. 136 of 2007 is hereby
converted to sentence undergone by the appellant accused. The appellant shall be released forthwith if he is not required to be detained in any
other case. Appeal is allowed to the aforesaid extent.