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.
NEUTRAL CITATION
R/CR.A/1351/2013 ORDER DATED: 23/07/2025
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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.
NEUTRAL CITATION
R/CR.A/1351/2013 ORDER DATED: 23/07/2025
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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.
NEUTRAL CITATION
R/CR.A/1351/2013 ORDER DATED: 23/07/2025
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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,
NEUTRAL CITATION
R/CR.A/1351/2013 ORDER DATED: 23/07/2025
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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
