Gujarat High Court
State Of Gujarat vs Laxmanbhai Shambhubhai Baraiya on 23 July, 2025
NEUTRAL CITATION
R/CR.A/1351/2013 ORDER DATED: 23/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1351 of 2013
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STATE OF GUJARAT
Versus
LAXMANBHAI SHAMBHUBHAI BARAIYA
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Appearance:
MS KRINA CALLA, APP for the Appellant(s) No. 1
NON BAILABLE WARRANT NOT RECEIVED BACK for the
Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 23/07/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY)
1. As per the judgment dated 8.7.2025, the appeal preferred by the State against the judgment of acquittal of the trial Court was allowed and the respondent was found guilty for the offences punishable under Sections 363 of IPC and 376 (1) of IPC and he was convicted for both the said offences. As he was absent on that day and he did not attend the Court on the date of judgment, this Court has issued non-bailable warrant against him to secure his presence to question him on the quantum of sentence to be imposed against him for the aforesaid two offences.
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2. Pursuant to the non-bailable warrant issued against him, he was brought under arrest on execution of the said non- bailable warrant by the police and he is produced before the Court today. We have verified his identity particulars from him and it is found that he is accused in the case. We have explained to him that he was found guilty for the offences punishable under Sections 363 and 376 (1) of IPC and he was convicted for the said offences. We have also questioned him on the quantum of sentence to be imposed on him.
3. He has stated that he is now married and he got a wife and three children, who are all dependents on him and he is the sole bread-winner of his family. He further stated that he has been working as a daily wage labourer in a pharmacy company and earning Rs.744/- per day, which is hardly sufficient to maintain his family. Therefore, he has prayed to take a lenient view in imposing the sentence against him.
4. We have considered the facts and circumstances of the case and we have taken into consideration the aforesaid facts narrated by him relating to his financial condition and family condition and that he is the sole bread-winner of his family and that his wife and three children are dependents on him. Page 2 of 5 Uploaded by R.S. MALEK(HC00180) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:49:12 IST 2025
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5. The offence took place on 14.2.2012. Therefore, the punishment prescribed for the aforesaid two offences at that time is applicable to the present facts of the case. As Section 376, which relates to punishment for commission of offence of rape, was drastically amended in the year 2018, enhancing the punishment, the said amendment of the year 2018 is not applicable to the present case.
6. The punishment prescribed for the offence under Section 363 of IPC for kidnapping a person from her lawful guardianship is imprisonment of either description for a term which may extend to seven years and he shall also be liable to fine. The victim girl, in the instant case, was a minor at the time of offence. Considering the poor economic and family condition of the accused, we are inclined to take a lenient view in imposing the sentence against him for offence under Section 363 of IPC. Therefore, he is sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 363 of IPC and to pay a fine of Rs.1,000/-, and, in default of payment of fine, to undergo simple imprisonment for a period of one month. Page 3 of 5 Uploaded by R.S. MALEK(HC00180) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:49:12 IST 2025
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7. As regards the offence under Section 376 of IPC is concerned, the facts of the case fall within the ambit of Section 376 (1) of IPC. It does not fall within the ambit of Section 376 (2) of IPC. The punishment prescribed for the offence under Section 376 (1) of IPC is imprisonment of either description for a term, which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. However, proviso to Section 376 (1) mandates that the Court may for adequate and special reasons, to be mentioned in the judgment, impose a sentence of imprisonment for term of less than seven years. Therefore, even though minimum sentence of seven years is prescribed in Section 376 (1) of IPC and maximum sentence upto life of ten years is prescribed, its proviso has given a wide discretion to the Court to impose sentence of imprisonment for a term of less than seven years, for adequate and special reasons to be mentioned. So, we are inclined to invoke the proviso and use our discretion to take a lenient view and impose lesser sentence of imprisonment on the accused. We have already noticed supra that the offence took place long back in the year 2012 and the accused has been suffering from abject poverty and he is the sole bread- winner of his family and he has got his wife and three children, Page 4 of 5 Uploaded by R.S. MALEK(HC00180) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:49:12 IST 2025 NEUTRAL CITATION R/CR.A/1351/2013 ORDER DATED: 23/07/2025 undefined who are dependents on him, and his earnings are also very paltry, as he is a daily wage employee working in a pharmacy company earning only Rs.744/- per day, which is hardly sufficient to maintain his family. Therefore, for the aforesaid reasons, the accused is sentenced to undergo rigorous imprisonment for a period of two years, and to pay a fine of Rs.1,000/-, and in default of payment of fine, to undergo simple imprisonment for a period of one month, for the offence punishable under Section 376 (1) of IPC.
8. Both the sentences imposed for the aforesaid offences under Sections 363 and 376 (1) of IPC shall run concurrently.
9. The accused is also entitled to set-off of the period of imprisonment, if any, undergone by him during the pre-trial stage and during trial stage, while calculating said period of imprisonment imposed against him under Section 428 of the Criminal Procedure Code.
(CHEEKATI MANAVENDRANATH ROY, J) (D. M. VYAS, J) R.S. MALEK Page 5 of 5 Uploaded by R.S. MALEK(HC00180) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:49:12 IST 2025