BHAVANBHAI BHAYABHAI PANELLA Vs. THE STATE OF GUJARAT

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), CRIMINAL APPEAL NO.2323 OF 2014 Judgment Date: Feb 04, 2015

  The only question which survives for consideration is the sentence
to be awarded- Having regard to the totality of circumstances, we  are  of  the  view
that ends of justice will be met if the sentence awarded  to  the  appellant is reduced to RI for ten years.  However, sentence of fine and  compensation as also default sentence and direction for recovery of  the  amount  payable  as compensation are maintained.  Ordered accordingly.

 NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.2323  OF 2014


BHAVANBHAI BHAYABHAI PANELLA                                 ...APPELLANT

                                   VERSUS

THE STATE OF GUJARAT                               ...RESPONDENT
                                  O R D E R

ADARSH KUMAR GOEL, J.

1.    This appeal has been preferred against judgment and order  dated  25th
March, 2011 passed by the High Court of Gujarat  at  Ahmedabad  in  Criminal
Appeal No.1298 of 2005.
2.    The case of the prosecution is that on 19th September,  2004  at  1330
hrs., the appellant took the prosecutorix aged eleven years  near  Khojawadi
plot in village Jasvantgadh, Taluka and District Amreli and committed  rape.
 He also threatened the prosecutorix that he would kill  her  if  she  would
disclose the facts to anyone.  However, she informed her  mother  about  the
occurrence who in turn informed her husband on his return to  the  house  in
the night.   In  the  next  morning,  the  prosecutorix  was  taken  to  the
Government Hospital by her parents and First Information Report  was  lodged
in the Police Station by the mother of the  victim.   Investigating  Officer
conducted the investigation and filed charge sheet  against  the  appellant.
At the trial, the prosecution examined the  prosecutorix,  her  mother,  the
medical officer and the investigating  officer  and  on  the  basis  of  the
evidence led, the trial Court held  the  case  of  the  prosecution  proved.
Accordingly, the trial Court  convicted  the  appellant  under  Section  376
(2)(f) IPC and sentenced him to undergo imprisonment for life and to  pay  a
fine of Rs.10,000/-, in default to undergo RI for three months.   The  trial
Court also awarded compensation of Rs.1,00,000/- (one Lakh)  to  the  victim
under Section 357(3).  It was directed that on failure  of  the  accused  to
pay compensation, his property will be liable to be  sold  for  recovery  of
the amount. The conviction and sentence  have  been  affirmed  by  the  High
Court.
3.    We have heard learned counsel for the parties.
4.    Learned  counsel for the appellant points out  that  the  prosecutorix
in cross-examination stated that the matter had been  compromised  and  that
her mother  PW-2  also  stated  at  one  stage  in  her  statement  that  an
unidentified  person  had  harassed  her.   These  aspects  have  been  duly
considered by the courts below and it has been held that from  the  totality
of evidence, the offence stood proved.  We find adequate evidence on  record
to justify conviction of the appellant.  Thus, conviction of  the  appellant
is upheld.
5.    The only question which survives for consideration is the sentence
to be awarded.  We have  been  informed  that  the  appellant  has  been  in
custody
for  about  ten  years.   Our  attention  has  been  drawn  to  the  custody
certificate
dated 27th July,  2012  according  to  which  the  appellant  had  completed
sentence of seven years, five months and ten days.  Thereafter, a period  of
two and a  half  years  has  gone  by.   Thus,  the  appellant  has  already
undergone the sentence of about ten years.
6.    Having regard to the totality of circumstances, we  are  of  the  view
that ends of justice will be met if the sentence awarded  to  the  appellant
is reduced to RI for ten years.  However, sentence of fine and  compensation
as also default sentence and direction for recovery of  the  amount  payable
as compensation are maintained.  Ordered accordingly.
7.    The appeal is disposed of.

                       ...................................................J.
                                       (T.S. THAKUR)


                       ...................................................J.
                                            (ADARSH KUMAR GOEL)
NEW DELHI
FEBRUARY 4, 2015