Gujarat High Court
State Of Gujarat vs Vinubhai Batukbhai Vagheliya on 1 October, 2025
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1732 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
VINUBHAI BATUKBHAI VAGHELIYA
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Appearance:
MR ROHANKUMAR H RAVAL, APP for the Appellant(s) No. 1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/10/2025
ORAL JUDGMENT
1. The jail remarks shows that the accused had
undergone six months and twenty three days of
imprisonment, and a set-off of seven days was
granted. The punishment was for six months and
Rs.10,000/- fine and in failure of payment of
fine, thirty days of further imprisonment. It
appears that the accused could not pay the fine
amount, thus had undergone the sentence as
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ordered.
2. The appeal is filed by the State under Section
377 of the Criminal Procedure Code, 1973
(Cr.P.C.) against the order of the sentence
passed by the learned Sessions Judge, Amreli on
05.07.2004 in Sessions Case no.57 of 2004
challenging as insufficient sentence and praying
for enhancing the sentence.
3. The respondent no.1 about 18 years was tried for
the offence punishable under Sections 363, 366
and 376 of the Indian Penal Code, 1860 (IPC). By
the order dated 05.07.2004. The learned Sessions
Judge was pleased to convict the accused under
Section 363 IPC and sentenced him to undergo six
months rigorous imprisonment and also to pay a
fine of Rs.5,000/-, in default of fine, to
further undergo fifteen days simple
imprisonment. Further, the learned Sessions
Judge was also pleased to convict the accused
for the offence punishable under Section 366 IPC
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and sentenced him to undergo six months rigorous
imprisonment to pay a fine of Rs.5,000/- with
the default stipulation of undergoing fifteen
days simple imprisonment on non-payment of fine.
Both the sentences were to run concurrently.
While the learned Sessions Judge was pleased to
acquit the accused for the offence punishable
under Section 376 IPC.
4. The learned APP, Mr. Rohan H. Raval has
submitted that taking into consideration the age
of the victim-girl as of 15 years, as deposed by
the victim herself, the sentence to the accused
is insufficient and the accused has not been
appropriately punished. Learned APP Mr. Raval
submitted that the victim-girl herself had
stated that she was taken away from the legal
guardianship of the father by the accused and
with an intent to have illicit intercourse.
Learned APP submitted that the evidence of the
victim-girl is corroborated by the evidence of
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the father who has himself stated that the
victim-girl was taken away by the accused from
his legal guardianship and at that time, the
girl was 13 years of age.
4.1 Learned APP, Mr. Raval submitted that when the
offence under Sections 363 and 366 of IPC was
proved before the Trial Court, then the penal
provision should be applied and no mercy can be
granted. Mr. Raval submitted that sentencing is
not an informal exercise, but an exercise of
judicial discretion and submitted that when the
provision makes a limit to the punishment, then
the maximum sentence is required to be ordered.
Mr. Raval submitted that the order of sentence
against the accused is very lenient and hence,
urged to enhance the same.
5. Section 377 Cr.P.C. reads as under:-
"377. Appeal by the State
Government against sentence.--
(1) Save as otherwise provided in
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sub-section (2), the State
Government may, in any case of
conviction on a trial held by any
Court other than a High Court,
direct the Public Prosecutor to
present an appeal against the
sentence on the ground of its
inadequacy--
(a) to the Court of Session, if the
sentence is passed by the
Magistrate; and
(b) to the High Court, if the
sentence is passed by any other
Court.
(2) If such conviction is in a case
in which the offence has been
investigated by the Delhi Special
Police Establishment, constituted
under the Delhi Special Police
Establishment Act, 1946 (25 of
1946), or by any other agency
empowered to make investigation into
an offence under any Central Act
other than this Code, the Central
Government may also direct the
Public Prosecutor to present an
appeal against the sentence on the
ground of its inadequacy--
(a) to the Court of Session, if the
sentence is passed by the
Magistrate; and
(b) to the High Court, if the
sentence is passed by any other
Court.
(3) When an appeal has been filed
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against the sentence on the ground
of its inadequacy, the Court of
Session or, as the case may be, the
High Court shall not enhance the
sentence except after giving to the
accused a reasonable opportunity of
showing cause against such
enhancement and while showing cause,
the accused may plead for his
acquittal or for the reduction of
the sentence."
6. In the case of the State of Rajasthan v. Mohan
Lal & Another in Criminal Appeal No.959 of 2018,
while deciding the leniency, the Hon'ble Supreme
Court had observed that the High Court was too
lenient in imposing the sentence of six days
only which was the period already undergone by
the accused in confinement. Thereafter, the
Hon'ble Supreme Court imposed a sentence of six
months rigorous imprisonment and fine of
Rs.25,000/- for the offence under Section 325 of
IPC and in case of default of payment of fine,
the accused was ordered to undergo further
rigorous imprisonment for 3 months. The Hon'ble
Supreme Court has referred to the case of Soman
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vs. State of Kerala, reported in (2013) 11 SCC
382 and Alister Anthony Pareira v. State of
Maharashtra reported in (2012) 2 SCC 648 and has
made observations in Paragraphs 10, 11, 12, 13
and 14 as under:-
"10. Currently, India does not have
structured sentencing guidelines
that have been issued either by the
legislature or the judiciary.
However, the Courts have framed
certain guidelines in the matter of
imposition of sentence. A Judge has
wide discretion in awarding the
sentence within the statutory
limits. Since in many offences only
the maximum punishment is prescribed
and for some offences the minimum
punishment is prescribed, each Judge
exercises his discretion
accordingly. There cannot,
therefore, be any uniformity.
However, this Court has repeatedly
held that the Courts will have to
take into account certain principles
while exercising their discretion in
sentencing, such as proportionality,
deterrence and rehabilitation. In a
proportionality analysis, it is
necessary to assess the seriousness
of an offence in order to determine
the commensurate punishment for the
offender. The seriousness of an
offence depends, apart from other
things, also upon its harmfulness.
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11. This Court in the case of Soman
Vs. State of Kerala [(2013) 11 SCC
382] observed thus :
"27.1. Courts ought to base
sentencing decisions on various
different rationales - most
prominent amongst which would be
proportionality and deterrence.
27.2. The question of consequences
of criminal action can be relevant
from both a proportionality and
deterrence standpoint
27.3. Insofar as proportionality is
concerned, the sentence must be
commensurate with the seriousness or
gravity of the offence.
27.4. One of the factors relevant
for judging seriousness of the
offence is the consequences
resulting from it.
27.5. Unintended consequences/harm
may still be properly attributed to
the offender if they were reasonably
foreseeable. In case of illicit and
underground manufacture of liquor,
the chances of toxicity are so high
that not only its manufacturer but
the distributor and the retail
vendor would know its likely risks
to the consumer. Hence, even though
any harm to the consumer might not
be directly intended, some
aggravated culpability must attach
if the consumer suffers some
grievous hurt or dies as result of
consuming the spurious liquor."
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12. The same is the verdict of this
Court in Alister Anthony Pareira Vs.
State of Maharashtra [(2012) 2 SCC
648] wherein it is observed thus:
"84. Sentencing is an important task
in the matters of crime. One of the
prime objectives of the criminal law
is imposition of appropriate,
adequate, just and proportionate
sentence commensurate with the
nature and gravity of crime and the
manner in which the crime is done.
There is no straitjacket formula for
sentencing an accused on proof of
crime. The courts have evolved
certain principles: the twin
objective of the sentencing policy
is deterrence and correction. What
sentence would meet the ends of
justice depends on the facts and
circumstances of each case and the
court must keep in mind the gravity
of the crime, motive for the crime,
nature of the offence and all other
attendant circumstances."
13. From the aforementioned
observations, it is clear that the
principle governing the imposition
of punishment will depend upon the
facts and circumstances of each
case. However, the sentence should
be appropriate, adequate, just,
proportionate and commensurate with
the nature and gravity of the crime
and the manner in which the crime is
committed. The gravity of the crime,
motive for the crime, nature of the
crime and all other attending
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circumstances have to be borne in
mind while imposing the sentence.
The Court cannot afford to be casual
while imposing the sentence,
inasmuch as both the crime and the
criminal are equally important in
the sentencing process. The Courts
must see that the public does not
lose confidence in the judicial
system. Imposing inadequate
sentences will do more harm to the
justice system and may lead to a
state where the victim loses
confidence in the judicial system
and resorts to private vengeance.
14. In the matter at hand, it is
proved that the victim has sustained
a grievous injury on a vital portion
of the body, i.e. the head, which
was fractured. The doctor has opined
that the injury was life
threatening. Hence, in our
considered opinion, the High Court
was too lenient in imposing the
sentence of six days only which was
the period already undergone by the
accused in confinement."
6.1 In Bed Raj v. State of Uttar Pradesh reported in
1955 (2) SCR 583, the Hon'ble Supreme Court has
concluded that the question of sentence is a
matter of discretion and it is well settled that
when discretion has been properly exercised
along accepted judicial lines, an appellate
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court should not interfere to the detriment of
the accused person except for very strong
reasons, which must be disclosed on the fact of
judgment. It was further held that in a matter
of enhancement, there should not be interference
when the sentence passed imposes substantial
punishment. Here in this case, the accused No.1
has already suffered imprisonment of one year
and thirteen days.
7. As provided under sub-section (3) of Section 377
Cr.PC, when a prayer is made by way of an appeal
against the sentence on the ground of
inadequacy, the sentence shall not be enhanced,
except giving to the accused a reasonable
opportunity of showing cause against such
enhancement. While showing cause, the accused
may plead for his acquittal or for the reduction
of the sentence. In light of the provision of
sub-section (3) of Section 377 Cr.P.C., the
argument raised by learned APP Mr. Raval has to
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be considered, where the accused would have the
right to plead his acquittal or even for
reduction of the sentence.
8. The prosecution case against the accused is as
per the complaint of Velsibhai Hathibhai,
resident of Dhari, who was having a business of
cattle, who has six daughters and two sons. He
lodged a complaint accusing that on 09.02.2004,
at about 02.30 hours in the noon, the sons of
the complainant - Kanubhai and Rajeshbhai
informed the complainant that one Shantuben,
wife of Batukbhai along with Vinubhai Batukbhai,
Rajubhai Savabhai and Bharatbhai Batukbhai came
to the house of the complainant and they lured
away the prosecutrix promising that they would
arrange her marriage with the accused and
thereby, abducted her forcibly in a loading
rickshaw.
9. On hearing the facts from the son, the
complainant started search of her daughter and
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also made an inquiry at the house of the said
Shantuben. However, the complainant did not
receive any response and therefore, he filed a
complaint on 10.02.2004 at Dhari Police Station
for the offence punishable under Sections 363
and 366 of the IPC.
10. It was the case of the complainant as per the
statement recorded on 12.02.2004 by the police
that the accused had taken his daughter on the
pretext of marriage, lured the victim. Such
incident had occurred at Village Bhad of Khambha
Taluka. It was also alleged that the accused
took the victim in the farm of Arjanbhai of
Savarkundla and had established sexual
intercourse with the victim-girl.
11. The Trial Court on appreciation of evidence has
acquitted the accused for the offence punishable
under Section 376 IPC i.e. for the rape on the
ground of benefit of doubt. The observation has
been narrowed down to the age of the victim-girl
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considering that being less than 18 yeas, the
victim would not be in a position to give her
free consent for establishing sexual relation
beyond marriage. The learned Trial Court Judge
was of an opinion that even if the permission
was granted to take away from the legal
guardianship, such consent cannot be considered
as free and legal. The learned Trial Court
Judge, on appreciation of the evidence of the
complainant, came to the conclusion that the
deposition of the complainant - Velsibhai at
Exhibit 8 proves that at the time of incident,
the victim was taken to Bagsara and later on,
the accused took away the victim-girl who was
thereafter found in the field of Arjanbhai at
Savarkundla. The victim was found with the
accused and the observation was of the learned
Trial Court Judge that the victim was taken away
in the absence of the father from his legal
guardianship and for about 20 days, the accused
had kept the victim in his custody, which as
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observed gets corroborated from the evidence of
the victim-girl herself.
12. The incident is dated 13.02.2004. The provision
of Section 375 refers to the age of the female
girl, to give her consent for sexual relation at
the age of 16. The provision under Section 375,
thus, considers that any consent given by the
female above the age of 16 would not be
considered as rape. While Section 361 of IPC
makes kidnapping punishable from the lawful
guardianship if the female was under 18 years of
age. Here, in the present matter, no documentary
evidence with regard to the age has been
produced.
13. In case of Mahadeo son of Kerba Maske v. State
of Maharashtra & Anr., (2013) 14 SCC 637,
reference has been made about Rule 12(3) of the
Juvenile Justice (Care and protection of
Children), Rules 2007) applicable in determining
the age. Para 12 of the said judgment reads as
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under:-
"12. We can also in this connection
make reference to a statutory
provision contained in the Juvenile
Justice (Care and Protection of
Children) Rules, 2007, where under
Rule 12, the procedure to be
followed in determining the age of a
juvenile has been set out. We can
usefully refer to the said provision
in this context, inasmuch as under
Rule 12(3) of the said Rules, it is
stated that:
12(3) In every case concerning a
child or juvenile in conflict with
law, the age determination inquiry
shall be conducted by the court or
the Board or, as the case may be, by
the Committee by seeking evidence by
obtaining--
(a)(i) the matriculation or
equivalent certificates, if
available; and in the absence
whereof;
(ii) the date of birth certificate
from the school (other than a play
school) first attended; and in the
absence whereof;
(iii) the birth certificate given by
a corporation or a municipal
authority or a Panchayat;"
Under Rule 12(3)(b), it is
specifically provided that only in
the absence of alternative methods
described under Rules 12(3)(a)(i) to
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(iii), the medical opinion can be
sought for. In the light of such a
statutory rule prevailing for
ascertainment of the age of a
juvenile, in our considered opinion,
the same yardstick can be rightly
followed by the courts for the
purpose of ascertaining the age of a
victim as well."
14. In the referred judgment, it has been concluded
that the yardstick applicable to determine the
age of juvenile can be followed even for victim.
The determination of the age is to be done by
following the procedure laid down in Rule 12(3).
Here, the deposition of the victim-girl recorded
at PW1 refers to her age as being 15 years. She
stated that after her inquiry by the police, she
was taken to the Government Dispensary at
Khambha as well as Amreli. The evidence of the
victim-girl was that the accused had allured her
under false pretext by stating that her father
was calling her, the accused took her to
Savarkundla, where they stayed for about three
to four days, there the accused entered into
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physical relations with her. She further stated
that the accused had taken her without the
permission of her parents, since her father had
given the complaint, so she had returned back
and she had no interest in staying with the
accused.
15. The chief examination does not show that the
physical relation established by the victim and
the accused was without the permission and
consent of the victim-girl. In her deposition,
she is not stating that when she was at
Savarkundla for three to four days and that the
accused had forcibly entered into physical
relation. In the cross-examination, it has been
brought on record that in the farm at
Savarkundla, where they were residing together,
the victim-girl was cooking and all the
household items were purchased from the village.
She used to go along with the accused. However,
she has denied of any statement to the police
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that because of the love relation, she had gone
with the accused. At that time, her father had
gone to Bagasra Village and mother was at
Village Niran and almost 20-23 days ago, in the
afternoon, she and accused had come at the bus
stand of Bhad Village and had sat in bus going
to Village Savarkundla.
16. The Investigating Officer-PW4-Purushottambhai
Rathod stated that he received the investigation
on 14.01.2004. He had recorded the statement of
the complainant and the victim as well as the
witnesses. In the cross-examination, the
Investigating Officer admitted that the victim
and the accused together had appeared in the
police station jointly.
17. The father in the deposition stated that her
daughter had informed him that by showing a
knife, forcibly the accused had taken her away.
The further evidence in the cross-examination
would refer that his age was 70 years and wife
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was 60 years. His eldest son was aged about 30
years, while another daughter was 35 years, 25
years and his second son was between 17-18
years, while he stated that the birth of the
victim was at home and the birth was never
registered. In view of the fact and as per
provision under Rule 12, it comes on record that
the victim-girl has never had any schooling. The
father clarifies that he does not remember the
date of birth of any of his children. No
documentary evidence showing the registration of
the birth, nor any leaving certificate from the
first school attended, could be produced since
the birth was never registered, nor the victim-
girl had entered any school for formal
education. In view of the referred fact, in
accordance to the provision of Rule 12, the
medical evidence with regard to the age could be
relied upon.
18. In the deposition of the Doctor examined as PW3,
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Dr. Kamlesh Vithlapara who had examined the
victim-girl, has given his deposition that there
was a hymen tear of the victim and for the
determination of the age, they had requested the
radiologist at Bhavnagar, inspite of that,
according to his opinion, the age of the victim-
girl was between 15 to 17 years. The
radiologist's report of the victim-girl was
received and the Doctor deposed that x-ray of
the victim-girl was taken and as per the
radiologist's report, the age would be between
15 to 17 years.
19. In the cross-examination, the Doctor could state
that there could be one or two years variation
in the age and referring to the x-ray plate-
Exhibit 20, the Doctor stated that the radius
and ulna were joined and as per the Doctor, such
progress of infusion of the bones could occur
only after the age of 17. Thus, the Doctor could
not deny that the age of the victim could be 17
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or more than 17.
20. In the case of Jarnail Singh v. State of Haryana
reported in (2013) 7 SCC 263, the Hon'ble
Supreme Court was of the view that though Rule
12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007, was strictly
applicable only to determine the age of the
child in conflict with law, Rule 12 as a
statutory provision should be the basis for
determining the age even of a child who is
victim of crime.
21. As laid down in the case of Jarnail Singh
(supra), in scheme of Rule 12(3) matriculation
or equivalent certificates of the child
concerned is the highest rated option. In case
such certificate is available, no other evidence
can be relied upon. Rule 12(3) envisages
consideration of the date of birth entered in
the first school attended by the child. When no
such documents as noted in (i), (ii), or (iii)
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of Clause (a) of Rule 12(3) has been produced on
record to prove the date of birth, Clause (b) of
Rule 12(3) provides that in absence of the
aforesaid, the determination of the age could be
made on the basis of medical opinion.
22. In case of Jaya Mala v. Home Secretary,
Government of Jammu and Kashmir, (1982) 2 SCC
538, the Hon'ble Supreme Court while considering
the evidentiary value of the radiological test,
determining the age of the person, has confirmed
that two years of either side can be accepted
while appreciating opinions of the expert
Doctor, ascertaining age of the person on the
basis of the radiological test.
23. In Rajak Mohammad v. State of Himachal Pradesh
reported in (2018) 9 SCC 248, while considering
the age of the victim-girl and the radiologist's
report, it was noted that the age determined on
the basis of radiological examination may not be
an accurate determination and sufficient margin
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either way has to be allowed, yet the totality
of the facts stated read with the report of the
radiological examination, gives room for ample
doubt with regard to the correct age of the
prosecutrix. The benefit of the aforesaid doubt
naturally must go in favour of the accused and
in view of such observation of the Hon'ble
Supreme Court, here when the age of the victim
is considered to be between 15 to 17 years, then
two years variation on the higher side would
determine the age of the victim as 19 years. If
that age, as per the medical report, gives the
benefit in favour of accused is considered, then
no offence would fall under Sections 366 or 363
of the IPC.
24. In view of the above analysis of the evidence,
the appeal of the State would fail merits. This
Court, thus, does not find any reason to
entertain the appeal of the State, which is for
the prayer for enhancing the sentence. Hence,
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the appeal stands dismissed. Record and
proceedings to be sent back to the concerned
Court.
(GITA GOPI,J)
PARMAR KRISH
