Salim Dalubhai Sepayi Vs State of Gujarat

Rajesh H. Shukla, J.@mdashThe present appeal is directed against the judgment and order dated 14-10-2005 rendered in Sessions Case No. 22 of 2002, recording the conviction of the accused for the offences under Sections 363, 366 and 376 of I. P. Code and imposing sentence of rigorous imprisonment for five years and fine of Rs. 5,000/-, in default, simple imprisonment for six months for the offence u/s 363 of I. P. Code and further rigorous imprisonment for seven years and fine of Rs. 5,000/-, in default, simple imprisonment for one year for the offence u/s 376 of I. P. Code. But, no separate sentence has been awarded for the offence u/s 366 of I. P. Code and the sentences have been ordered to run concurrently.

2. The facts of the case, briefly summarised, are as follows :

3. It is the prosecution case that on 22-5-2001 at about 7-30 in the evening, the son of brother-in-law informed to come to his village and that his daughter (victim) has gone away somewhere. Thereafter, he made a search with his relatives and as the victim could not be traced, he had also made inquiry about the accused who was also residing in his neighbourhood who had come from Surat was not found for seven days. It is also stated that the accused had sprinkled gulal during the Holi on the daughter, and therefore, there was some quarrel for which the complaint was given in the police. Therefore, he had felt that his minor daughter (victim) may have been taken away by the accused for which the complaint was filed with Bilkha Police Station, Junagadh on 23-5-2001 which has been registered as I-CR No. 14 of 2001 for the offences under Sections 363, 366 and 376 of I. P. Code.

4. On the basis of the complaint given by the complainant, the aforesaid was registered. After the investigation was over, the charge-sheet came to be filed. However, as the case was triable exclusively by the Court of Sessions, it was committed to the Court of Sessions and the learned Sessions Judge framed the charges against the accused and proceeded with the trial.

5. In order to bring home the charges levelled against the accused, the prosecution has examined the witnesses and also produced the documentary evidence which shall be referred in the judgment as and when required.

6. After recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge, Junagadh recorded the further statement of the accused u/s 313 of the Code of Criminal Procedure.

7. After hearing the learned A.P.P. and the learned Advocate for the defence, the learned Sessions Judge, Junagadh recorded the conviction of the accused and sentenced him as stated hereinabove.

8. It is this judgment and order which has been assailed on the grounds set out in the memo of the appeal inter alia that the learned Judge has failed to appreciate the material and evidence on record and has failed to consider the defence raised with regard to the consent. Learned Advocate Mr. Tolia referred to the testimony of P.W. 7 at Exh. 28 and submitted that her evidence requires close scrutiny as it is not believable. He submitted that it transpires that she was taken away from place to place where she had the liberty to raise shouts, and therefore, the allegations for the offence u/s 376 of I. P. Code cannot be believed. Learned Advocate Mr. Tolia submitted that there was an affair and she had voluntarily accompanied the accused which is also evident from the testimony of the victim P.W. 7 at Exh. 28 and the testimony of Investigating Officer - P.W. 12 at Exh. 41 wherein the said fact is proved by the evidence. He emphasised that the Investigating Officer has in his further statement recorded stated as to what has transpired and the victim had voluntarily accompanied the accused.

8.1. Learned Advocate Mr. Tolia submitted that another aspect which is required to be examined is the evidence regarding the age of the victim. He submitted that though the victim was minor below the age of 18 years, the evidence would clearly suggest that she was above 16 years of age, and therefore, she had discretion. For that purpose, he referred to the material and evidence and submitted that her father P.W. 4 at Exh. 24 has mentioned the date of birth of the victim as 18-12-1985. However, the birth certificate produced at Exh. 36, the extract of the Register of Births and Deaths produced at Exh. 33, it is required to be considered in light of the evidence of P.W. 10 at Exh. 35. Learned Advocate Mr. Tolia submitted that P.W. 10 is a Clerk working in the Junagadh Municipality and he has stated the name of the mother of the victim as Hinaben and not Gunwantiben. He referred to the testimony of P.W. 4-complainant father at Exh. 24 and the F.I.R. at Exh. 25 and submitted that he has stated the birth date as 18-12-1985 and he stated that the age of the victim as 17 years and the age of the second daughter is 15 years. He submitted that the mother of the victim is examined at Exh. 6, who has turned hostile and she has stated her age as 20 years. Therefore, at the time of the incident, she would be 17 years of age. Learned Advocate Mr. Tolia referring to the testimony of the complainant-father at Exh. 24 and the testimony of mother at Exh. 27 submitted that she was sent to the relative at Bilkha where she was alone. In the cross-examination, the complainant has stated that due to some ill-feeling, she had run away. Further, the fact remains that her engagement was made earlier. He, therefore, submitted that the certificate at Exh. 36 has been produced on the basis of which the School Leaving Certificate which is produced at Exh. 57 records her birth date as 18-12-1985 and the Clerk- P.W. 13 of the School who is examined at Exh. 55 has stated in his testimony that the entry has been made in the Register of the School while admitting her in the school and on that basis the certificate as per the Register of the School, the School Leaving Certificate at Exh. 57 has been issued mentioning birth date as 18-12-1985. He further submitted that on the basis of the aforesaid School Leaving Certificate, no investigation has been made as regards the age of the other children which is required to be made. He has submitted that even if she may be below 18 years of age, the Court may consider her age that she was about to be major, and therefore, due to the affair, she had accompanied the accused. Learned Advocate Mr. Tolia relied upon the judgment of the High Court reported in 2008 (0) GLHEL-HC 221290 ( Himat Popatlal Raval Vs. State of Gujarat, (Himat Popatlal Raval v. State of Gujarat) and submitted that in both the cases, though the age was below 18 years, the Court has considered the fact that it could be an affair, and therefore, the sentence was reduced. He has also referred to and relied upon the judgment of the High Court reported in Dharmendra Dhirajlal Soneji Vs. State of Gujarat, He also relied upon the following judgments: 1985 GLH 388 (State of Gujarat v. Jivanlal Chhotalal Patel); 2006(3) GLH 530 : 2006 (4) GLR 3274 ( State of Gujarat Vs. Babu Allas Roni Manilal, and emphasised on the observations made therein and submitted that in all these cases, the alternate submission on the aspect of sentence has been considered. He emphasised that on the basis of the observations, in this case also, considering the fact that the victim was minor, the sentence was reduced by the Court. He emphasised on the observations about the fact of T.V. and media and submitted that considering the impact, the sentence may be reduced. Learned Advocate, therefore, strenuously submitted that the alternate submission regarding reduction in sentence may be considered on the ground that the accused is also of young age. The accused has undergone about 3 to 4 years of sentence and the victim had voluntarily accompanied him which is evident from the material and evidence.

9. Learned A.P.P. Mr. L.R. Pujari referring to the material and evidence including the testimony of victim P.W. 7 at Exh. 28 submitted that she has clearly stated that though she had accompanied the accused, she was compelled to accompany him. Though, it has been suggested to her that she had an affair, she had denied it. Learned A.P.P. submitted that it cannot be said that she was a willing party. In any case, as she was below 18 years of age, her consent cannot be relevant for the purpose of offence u/s 376 of I.P. Code. Therefore, learned A.P.P. submitted that the impugned judgment and order recording the conviction of the accused is just and proper. Learned A.P.P. has further submitted that the testimony of the victim clearly corroborates the testimony of the father of the victim, P.W. 4 at Exh. 24 regarding the birth date of the victim as 18-12-1985, which is corroborated with the birth certificate produced by the competent authority at Exh. 36. Similarly, the School Leaving Certificate also produced at Exh. 57 and the witnesses have also been examined, therefore, it cannot be said that there is any doubt with regard to the age of the victim. Learned A.P.P., therefore, submitted that when she has stated to be minor below the age of 18 years and when she has categorically stated about the manner in which the offence was committed, her consent cannot be termed as contrary to what she has stated and the judgment and order recording the conviction cannot be said to be erroneous. He submitted that considering the fact that she was minor and was compelled to accompany the accused would not justify any leniency in the sentence. He submitted that the accused might have undergone sentence for 4 or 5 years, but considering the observations made in the judgment of the Hon''ble Apex Court reported in State of M.P. Vs. Bablu Natt, in such cases, the sentence below the minimum prescribed need not be awarded. For that purpose, he has emphasised on Para Nos. 4 and 5 of the aforesaid judgment and submitted that the present appeal deserves to be dismissed.

10. In view of the rival submissions, it is required to be considered whether the impugned judgment and order calls for any interference and the present appeal could be entertained or not.

The submissions on which learned Advocate Mr. Tolia emphasised about the aspect of consent is required to be analysed on the basis of the material and evidence on record. Again for deciding this aspect of consent, the same has to be considered with reference to the age of the victim. Therefore, the submissions made referring to the evidence regarding the age of the victim has to be considered in view of the testimony of the complainant- father, P.W. 4 at Exh. 24 and the testimony of mother, P.W. 6 at Exh. 27 where both of them have stated that she was aged about 17 years. The complainant father P.W. 4 in his testimony at Exh. 24 has stated that her birth date is 18-12-1985 which is corroborated by the testimony of P.W. 10 at Exh. 35, the Clerk of the Junagadh Municipality who had produced the extract of the Register of Birth and Death and also the birth certificate which has been produced at Exh. 36 wherein the birth date mentioned is 18-12-1985. It is further corroborated by the testimony of P.W. 13 at Exh. 55, the Clerk of the school who has stated that the School Leaving Certificate has been produced on the basis of the birth date registered in the Register of the School wherein also the birth date is mentioned as 18-12-1985. The submission made by learned Advocate Mr. Tolia that as there were other children, the evidence ought to have been produced so that it could justify the birth date of the victim. He has emphasised referring to the extract of Register of Births and Deaths at Exh. 37 that the name has not been mentioned, and therefore, it cannot be said that it was regarding the birth of the victim only. In support of his submissions, reliance is placed by learned Advocate on the judgment reported in (State of Gujarat v. Jivanlal Patel) 1985 GLH 388 which has no application to the facts of the case as the Head-note makes it very clear that in the facts of the present case the birth certificate has been produced and the officer has been examined has also produced the extract of the Birth Register regarding the entry of birth of the victim at Exh. 20. Similarly, another judgment reported in State of Gujarat Vs. Babu Allas Roni Manilal, on which reliance has been placed, will not have any application as there was some doubt regarding the age of the victim. In the facts of the present case, the evidence regarding the age of the victim that she was below the age of 18 years is established when there is specific evidence regarding the age, the reference and the submissions made by learned Advocate Mr. Tolia referring to the testimony of P.W. 3 regarding the radiological examination stating that there could be a difference of two years and on that basis it should be believed that she could be 19 years of age is misconceived.

Another facet of the argument referred to the aspect of consent for which learned Advocate Mr. Tolia has referred to the judgment of the High Court reported in 2008 (0) GLHEL - HC 221290 (Ajay Vaghjibhai Karena v. State of Gujarat) to support his submission that the victim had an opportunity to raise the shouts or run away as they had moved from one place to another. He has further submitted that she has attained the age of discretion and understanding, and therefore, even though, technically she may be below the age of 18 years, consent may be implied. Though, this submission has been made that she had attained the age of discretion cannot be doubted, referring to the observations made in the judgment reported in Dharmendra Dhirajlal Soneji Vs. State of Gujarat, relying on the facts of channels and T.V. etc., she may be having the discretion. However, that does not make any difference in law as the age prescribed in such cases as regards the aspect of minority has to be considered. Further, if she was having affair and if she had discretion as admittedly stated by learned Advocate Mr. Tolia, on the contrary, her testimony would not have corroborated the prosecution case when she had specifically stated in her testimony as to what had transpired. She has specifically stated that her mouth was covered and she has specifically denied of any such affair. The submission made referring to the omissions regarding in the testimony of the Investigating Officer at Exh. 41 referring to her statement again it is required to be appreciated that she has specifically explained as to how she could not raise the shout. Therefore, when there is a direct evidence of the victim specifically stating about the incident and also the fact that her mouth was covered, she could not have shouted, this aspect cannot be overlooked. The submissions made by learned Advocate Mr. Tolia that she could have raised the shouts and that she had the opportunity to run away cannot be readily accepted though much emphasis has been given referring to the two judgments of the Court discussed hereinabove. However, these submissions cannot be accepted in light of the observations made by the Hon''ble Apex Court in the judgment reported in State of M.P. Vs. Bablu Natt, and it reflects the development of law and the change in the approach by all concerned in such cases. Therefore, the submissions made by learned Advocate Mr. Tolia are required to be considered keeping in mind much development in law that has taken place by catena of judicial pronouncements of the Hon''ble Apex Court as well as this Court. The same contentions which have been raised by learned Advocate Mr. Tolia have been considered by the Hon''ble Apex Court in the aforesaid judgment reported in State of M.P. Vs. Bablu Natt, and has discussed by the Hon''ble Apex Court and reiterated the aspects which have to be kept in mind while considering such cases of rape which are emphasising that rape is not only violation of privacy and physical assault, but has also the psychological aspects as it will affect the entire personality. It has been observed in State of Punjab Vs. Gurmit Singh and Others, that the rapist not only violates the victim''s privacy and personal liberty, but causes serious psychological as well as physical harm in the process. It is often destructive to the personality of the victim. Again emphasising on this aspect, it has been observed that the Court should be alive and sensitive to this aspect while dealing with such cases. In the judgment rendered in Criminal Appeal No. 763 of 2008 dated 28-7-2010, wherein referring to the earlier judgments of the Hon''ble Apex Court in Para Nos. 29 and 30 the aspect of consent has been referred and observed that the consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. An act of helplessness on the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat or use of force is sufficient. Therefore, in light of these clear observations, the consent cannot be inferred ignoring the specific testimony of the victim P.W. 7 at Exh. 28. Therefore, the submission which has been made with much emphasis by learned Advocate Mr. Tolia regarding the doubt as to the age of the victim, and alternatively, that she has attained the majority and discretion, she has voluntarily accompanied, and therefore, the Appellant is falsely implicated, cannot be accepted.

The alternate argument made by learned Advocate Mr. Tolia on the aspect of punishment that the accused is of young age and he had undergone about 3 to 4 years of sentence, and therefore, even while maintaining the conviction, the sentence may be reduced to the period he has undergone is required to be considered in light of the material and evidence and also and the law on this aspect. The submission has been made that it should be reduced, meaning thereby, he should be awarded minimum sentence as provided for such an offence u/s 376 of I.P. Code. The Court below awarded rigorous imprisonment for 7 years which is the minimum sentence. Proviso to Section 376 of I. P. Code provides that:

376. Punishment for rape-

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Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

Thus, it provides for adequate and special reasons to be mentioned in the judgment when the imprisonment for less than 7 years could be awarded. This would imply that it has to be only in exceptional circumstances and cases which again oblige this Court by setting out the adequate and special reasons (Emphasis supplied) for such deviation. The submissions made referring to the age or that she had also not raised the shouts and she had consented are all aspects which have been considered as discussed above and discussed in the judgment reported in State of M.P. Vs. Bablu Natt, The Hon''ble Apex Court after considering such submissions has negatived and while considering the principle regarding the imposition of punishment and made the observations in Para No. 13, which reads as under:

13. The rationale for advocating the award of a punishment commensurate with the gravity of the offence and its impact on the society, is to ensure that a civilised society does not revert to the days of "an eye for an eye and a tooth for a tooth". Not awarding a just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted.

Again, the Hon''ble Apex Court in the judgment reported in State of M.P. Vs. Bala @ Balaram, referring to the doctrine of proportionality has observed in Para Nos. 14 and 16 as under :

14. The rationale for advocating the award of a punishment was recognised. According to Kautilya, "Whoever imposes severe punishment becomes repulsive to people, while he who awards mild punishment becomes contemptible. The ruler just with the rod is honoured. When deserved punishment is given, it endows the subjects with spiritual good, material sell-being and pleasures of the senses." (See Kautilyan Jurisprudence by V.K. Gupta under the head "Nature and Scope of Punishment''''.) This philosophy is woven into our statute and our jurisprudence and it is the duty of those who administer the law to bear this in mind.

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16. It is not necessary to multiply authorities. In a recent decision in State of Madhya Pradesh Vs. Munna Choubey and Another, this question has again been dealt with. This Court observed: (SCC p. 716, Para 15)

15. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counter-productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

In a judgment reported in State of M.P. Vs. Bablu Natt, referring and quoting the earlier judgment in State of Karnataka Vs. Raju, it has observed that, "it has observed it needs no emphasis that the physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury, but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.

Therefore, considering the aforesaid principles and also the doctrine of proportionality, it cannot be said that any exception could be made which would call for reducing the sentence below the minimum provided by the statute. There are special or adequate reasons made out to make such an exception. A useful reference can be made to the observations made in the judgment of the Hon''ble Apex Court reported in Siriya @ Shri Lal Vs. State of Madhya Pradesh, wherein it has been observed as under :

7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.

8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal, etc. Vs. State of Tamil Nadu,

9. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice, sentences are determined largely by other considerations. Sometimes, it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes, the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Therefore, the Hon''ble Apex Court, considering all these aspects has laid down that there may not be any formula or criteria which would be applicable in every case and it is the obligation of the Courts to decide the punishment according to the crime with reference to the gravity of the offence.

11. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or etc.

12. Therefore, it may not be out of place to mention that the message has to go in the society conveying that serious crimes are punished severely without any leniency and only then it will have the deterrent effect, which in turn will allow the common man to feel secured, and society as a general also secured and civilized. Any leniency or misplaced sympathy would rather have the effect of causing more harm to the criminal justice delivery system.

13. In the result, the present appeal deserves to be dismissed and it is accordingly dismissed. The impugned judgment and order does not call for any interference. The judgment and order in Sessions Case No. 22 of 2002 passed by the learned Sessions Judge, Junagadh dated 14-10-2005 recording the conviction of the accused and awarding sentence is hereby confirmed.