VEDVA VAGHARI RAMESH RAMABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this Conviction Appeal instead of concerning with the merits of the case, I feel, I am concerned with a technical off-shoot. The question before me is in respect of the real intent and spirit of Art. 21 of the Constitution of India and the provisions contained under Sec. 304 of the Criminal Procedure Code, together with the provisions contained under Paragraph 125 of the Criminal Manual.

(2.) The appellant accused came to be prosecuted for the alleged commission of the offence punishable under Secs. 376 and 502 of Indian Penal Code on the accusation that on 7-6-1991 at village Bhilwada under Palitana taluka of Bhavnagar district, the appellant accused ravished the minor prosecutrix against her will and without consent. The proceedings have resulted in the judgment of conviction and sentence, under which the appellant accused is sentenced to the R.I. for seven years and a fine of Rs. 1000/-, in default to the R.I. of six months for the offence punishable under Sec. 376 of Indian Penal Code. So far as the offence under Sec. 506(2) of Indian Penal Code is concerned the appellant accused has been sentenced to the R.I. of two years and to a fine of Rs. 500.00in default to the S.I. for 3 months. The substantial sentences have been ordered to run concurrently.

(3.) As pointed out earlier, I am concerned with the technical flaw in the proceedings before the learned Addl. Sessions Judge, Bhavnagar who has conducted the Sessions Case against the accused and ultimately found him guilty for the said offences. The learned Counsel Mr. Yogesh Mankad appearing on behalf of the appellant would urge that, under the provisions contained under Art. 21 of the Constitution of India and under Sec. 304 of the Code of Criminal Procedure, 1974 and Criminal Manual, both the learned Committal Magistrate and learned Sessions Judge were required to ascertain as to whether it was possible for the appellant accused to engage a lawyer to defend him in the case, and that if not done, the technical flaw would result into the violation of the Constitutional guarantee provided to the appellant accused under Art. 21 of the Constitution of India. The learned Counsel would also urge that, in the same way the statutory provisions contained under Sec. 304 of Criminal Procedure Code would stand violated along with the provisions contained under the Criminal Manual.