“It can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions. The best way to bring about the elimination of those shortcomings of our judicial system that are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.”
- Judge Jerome Frank, in Courts on Trial, Princeton University Press, 1949
Judge Jerome Frank employed an equation, R x F=D where R signifies the rule of law, F signifies the facts, and D signifies the decision. If a judge's decision is wrong, it may be for any of three reasons: she/he may have adopted the wrong rule of law; she/he may have incorrectly found the facts; or she/he may have improperly applied the law to the facts.
On January 9, 2025, in Yogesh Jayantilal Bhavasar vs. The State of Gujarat (2025), Supreme Court's bench of Justices J.B. Pardiwala and R. Mahadevan observed:"We fail to understand how trial court could have imposed sentence of three years rigrous imprisonment for the offence of rape punishable under Section 376 of the Indian Penal Code, 1860 (for short “the IPC”). Section 376 of the IPC, even prior to its amendment in 2013, provided that the minimum punishment shall be that of seven years, which may be for life or for a term which may extend to 10 years."
It noted that the State had preferred an appeal seeking enhancement of sentence but the appeal was dismissed by the Gujarat High Court. While dismissing the criminal appeal, The High Court failed to note as to how could the trial court have imposed sentence of three years for the offence of rape punishable under Section 376 of the IPC whereas the minimum is seven years.
Unlike in other cases, Supreme Court's website does not provide the name of the High Court's judges who authored the judgment overlooking the error on the part of the trial court. High Court's judgement was delivered by Justices K.S. Jhaveri and G.B.Shah on September 2, 2015. It was authored by Justice Jhaveri.
The High Court's bench of Justice Z.K.Saiyed has admitted the appeal on April 2, 2012. Th appeal was against the judgement of Additional Sessions Judge, Court No.7, Ahmedabad City in Sessions Case No.269/2008 whereby, original accused no.1 to 3 were convicted for the offences punishable u/s.418, 420, 376 r/w. Section 114 of Indian Penal Code. Criminal Appeal No.674/2012 was preferred by the State seeking enhancement of sentence imposed upon all the three accused persons vide the impugned judgment and order. Criminal Appeal No.374/2012 was preferred by original accused no.2 and 3 against their conviction u/s.376, 418 and 420 r/w. Section 114 IPC. Criminal Appeal No.375/2012 was preferred by original accused no.1 against his conviction u/s.376, 418 and 420 r/w. Section 114 IPC.
on September 1, 2006 an FIR being IC.R. No.137/2006 was registered with GIDC Vatva Police Station, Ahmedabad by the survivor wherein, it was alleged that original accused no.2 & 3, who happen to be the paternal relatives of the survivor, lured the survivor to reside with them at their home, after the death of her father, under the pretext of getting her married to the person of her choice. During her stay, the survivor came into contact with original accused no.1, who was already married and having children. The original accused no.1 lured and persuaded the survivor to get married with him and also developed physical relationship with her. The survivor was also pressurized by the accused persons to get into prostitution. Accused no.1 had physical encounters with the survivor on numerous occasions, which, ultimately, made her pregnant. The survivor was taken to some Hospital, where the pregnancy was aborted. Necessary investigation was carried out and statements of several witnesses were recorded. As sufficient material was found against original accused no.1 to 3, chargesheet was filed against them before the magisterial Court. As the case was sessions triable, it was committed to the Sessions Court for trial. The counsel of the accused submitted that the sexual act was largely a consensual act by the survivor.
The High Court's judgement records that originally the complaint in was filed against nine accused persons. After necessary investigation, charge sheet was filed only against the present three accused persons, as no material was found against the other individuals. It is an undisputed fact that original accused no.1 was married and having two children out of the wedlock. By concealing this fact from the survivor, the accused persons enticed the survivor to get into marriage with original accused no.1 and thereby, led her to indulge into sexual intercourse with accused no.1.
Justice Jhaveri observed:"we are of the view that the Court below has not committed any error in convicting the accused for the offence in question. We are in complete agreement with the reasonings given by and the findings arrived at in the impugned judgment. However, considering the fact that the period of almost ten years has elapsed and the survivor has settled, though we are inclined to enhance the sentence imposed upon the accused but, since it has been brought to our notice that accused no.1 is having children of marriageable age and that his wife has lost almost 80% of eyesight and thereby, his family is facing severe hardship, we are not entertaining the enhancement appeal filed by the State."
Taking these reasons in to consideration, the Court dismissed the appeals confirmed the impugned judgment and order dated March 17, 2012 passed by the Additional Sessions Judge, Court No.7, Ahmedabad City in Sessions Case No.269/2008.
The operative part of the judgment and order dated March 17, 2012 passed by V.M.Nayak, Judge of the City Civil Court, Ahmedabad in Sessions Case: 269/2008 reads: “for the offence punishable u/s.376 and 114 of the I.P.C. the accused No.l Yogesh Jayantilal Bhavsar is ordered to undergo a ngorous imprisonment of 3 (Three) years and to pay a fine of Rs.3,000/- (Rupees Three Thousand only) and in default of payment of fine, he shall undergo a further simple imprisonment of 6 (Six) months. Further, for the offence punishable u/s.418 and 114 of the I.P.C. the accused No.I Yogesh Jayantilal Bhavsar is ordered to undergo a ngorous imprisonment of 2 (Two) years and to pay a fine of Rs.3,000/- (Rupees Three Thousand only) and in default of payment of fine, he shall undergo a further simple imprisonment of 3 (Three) months. Further, for the offence punishable u/s.420 and 114 of the I.P.C. the accused No.I Yogesh Jayantilal Bhavsar is ordered to undergo a rigorous imprisonment of 2 (Two) years and to pay a fine of Rs.3,000/- (Rupees Three Thousand only) and in default of payment of fine, he shall undergo a further simple imprisonment of 6 (Six) months. Whereas, for the offence punishable u/s.376 and 114 of the I.P.C. the accused No.2 Sheelaben W/o Goldenbhai @ Ganeshbhai and the accused No.3 Goldenbhai @ Ganeshbhai both, are ordered to undergo a rigorous imprisonment of I (One) year and to pay a fine of Rs.2,000/- (Rupees Two Thousand only) each and in default of payment of fine by any of them, they shall undergo a further simple imprisonment of 3 (Three) months. Further, for the offence punishable u/s.418 and 114 of the I.P.C. the accused No.2 Sheelaben W/o Goldenbhai @ Ganeshbhai and the accused No.3 Goldenbhai @ Ganeshbhai both, are ordered to undergo a rigorous imprisonment of I (One) year and to pay a fine of Rs.2,000/- (Rupees Two Thousand only) each and in default of payment of fine by any of them, they shall undergo a further simple imprisonment of 3 (Three) months. Further, for the offence punishable u/s.420 and 114 of the I.P.C. the accused No.2 Sheelaben W/o Goldenbhai @ Ganeshbhai and the accused No.3 Goldenbhai @ Ganeshbhai both, are ordered to undergo a rigorous imprisonment of 1 (One) year and to pay a fine of Rs.2,000/- (Rupees Two Thousand only) each and in default of payment of fine by any of them, they shall undergo a further simple imprisonment of 3 (Three) months. lt is hereby ordered that all the sentences awarded to the accused persons shall run concurrently and the period spent by them in the prison shall be given as set off. It is also hereby ordered that the muddamaal of the instant case shall be disposed of after expiry of the appeal period and each accused herein shall be provided with one copy of this judgment, free of cost.”
The High Court's judgement reads: "The
original accused are on bail. Their bail bonds stand cancelled. The
accused persons are directed to surrender to custody within a period of
TWO MONTHS from today to undergo the sentence imposed upon them failing
which the investigating agency shall take necessary action against the
accused person/s in accordance with law. It is, however, observed that
if any of the accused person/s has already undergone the sentence
imposed upon them, then such accused person/s is not required to
surrender to custody."
Notably, even prior to amendment in the Section 376 of the IPC in 2013, it was provided that the minimum punishment for rape shall be that of seven years, which may be for life or for a term which may extend to 10 years. There is nothing in the judgment of the trial court and the High Court to defend the indefensible act of imposing a sentence of only three years rigorous imprisonment for the offence of rape punishable under Section 376.
Drawing from Court's on Trial, it can be inferred that Gujarat High Court application of the law to the facts is quite improper. The criminal appeal against the High Court's judgement was filed by the accused in the Supreme Court
on December 7, 2015. The act and omission and commission of the State of Gujarat in its failure to file an appeal is quite stark.
The counsel appearing in the Supreme Court for the State of Gujarat admitted that it was "a serious error on the part of both, the trial court as well as the High Court going to the root of the matter." The Supreme Court's order has recorded that the counsel has acknowledged that the State should have appealed in the Supreme Court against the High Court's order which was conscious of the "error committed by the trial court in imposing sentence of three years" but it overlooked it. It is listed for hearing on January 23, 2025.
P.S.: Notably, on December 16, 2015, in State of Gujarat vs. Jaydip Damjibhai Chavda, the Gujarat High Court's bench of Justices M.R. Shah and Z.K.Saiyed observed: "awarding the sentence of only three and half years for the offence under Section 376 of the IPC by no stretch of imagination it can be said to be imposing adequate punishment commensurate with the gravity of the offence. It is required to be noted that in the present case at the time of commission of offence the accused was aged 38 years of age and both the victim/prosecutrix were less than 16 years of age, out of which one victim/prosecutrix was the stepdaughter i.e. accused was the step father." It noted that "The only reason given by the learned trial Court while imposing the punishment lesser than the minimum provided under Section 376 of the IPC is that the accused is a poor and has a responsibility to maintain his wife and children. The aforesaid can hardly be said to be a cogent reason and/or special circumstances/case while awarding the punishment less than the minimum provided under Section 376 of the IPC."
The penultimate paragraph of the judgement reads: the offence of rape is a heinous crime not only against the individual but also against the society at large. The offences against the woman more particularly under Section 376 of the IPC are increasing. Therefore a massage must go to the society that if such an offence is committed it shall be dealt with ironhand and strictly and that no leniency shall be shown. Thus, in the present appeal the learned trial Court has not exercised the discretion judiciously and it can be said that the learned trial Court has failed to perform its duty as a Judge while awarding appropriate and adequate punishment to an offender who is convicted for the offence under Sections 376, 377 and 506(2) of the Indian Penal Code."
The High Court concluded: The impugned judgment and order passed by the learned Additional Sessions Judge, Court No.13, Ahmedabad, in Sessions Case No.122 of 2009 is hereby quashed and set aside insofar as awarding of sentence for the offence under Sections 376 and 377 of the Indian Penal Code is concerned. While convicting the accused for the offence under Section 376 of the Indian Penal Code the accused is sentenced to undergo10 (ten) years R.I. with fine of Rs.10,000/ and in default of payment of fine to undergo further 06 (six) months R.I. and he is also sentenced to undergo 07 (seven) years R.I. for the offence under Section 377 of the Indian Penal Code and fine of Rs.500/ and in default of payment of fine to undergo further R.I. for 02 (two) months and sentence imposed by the learned trial Court while convicting the original accused for the offence under Section 506(2) of the Indian Penal Code is hereby maintained. All the sentences to run concurrently. The accused to surrender before the jail authority to undergo the remaining sentence as per the present judgment and order within a period of 04 (four) weeks from today, failing which nonbailable warrant be issued against him to undergo the remaining sentence."
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