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1996 Supreme(Guj) 425
Gujarat High Court
Judgename :D.G.Karia, K.J.VAIDYA
DHARMENDRA DHIRAJLAL SONEJI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 716 of 1995
Decided On : 09/04/1996
Headnote:(a) Vade Macum - Constitutional functionaries - Failure of to curb atrocities on women - Duties of enlighten citizens.
If the concerned law enforcing agency fails to discharge its duty strictly enforcing the relevant law, enlightened citizens must protest and revolt against them till the time it is brought to the sense of enforcing law in right earnest. Infact. It is the duty of every District Magistrate, District Superintendent of Police and the concerned Commissioner of Police to see that in each and every Taluka, there is a special and effective girls-women protection Cells, enforcing relevant laws enacted for the protection of girls, women and young lads with iron-hand.
[Para 18]
(b) Vade Macum - Principle of Cause & Effect - Anti Social on - Slaught resulting in vulgar culture on the permissive society approach & brain washing the younger once - Causes which precedes the effect of.
We must know rather understand that universal, exceptionless great principle of `Cause & Effect !! Nothing happens or comes out of nothing !! Rather, all causes precedes effect. That means if you want to take care of effect, always take care of cause. It is said that, `sins of the parents visit their children. In this regard, sins are not necessarily constituted by action alone as even omission on the part of any person to do anything to prevent any wrong being commited in the society is also equally a sin. The worst sin of this generation is totally unconcerned and wooden attitude in dealing with perverse film producers, actors and actresses, continuously exhibiting sex-indulgence and all sort of crimes making the society in particular budding generation of our sexually perverse and criminal in all respect. And it is this sin which is bound to visit our posteriors shattering their family and social life !! This is going to result into rampant increasing criminal activities, of murder, eves-teasing, molesting, kidnapping, abducting, black-mailing young girls making them agree to marry, decoity, rapes, so much so that if this anti-social onslaught is not thwarted in time, the prostitution in every home would be the order of the day because of the excessive sexual indulgence and the vulgar culture of the permissive society approach, brainwashing the younger ones.
[Para 13]
(c) Vade Macum - Twenty first century - Vision of.
The time is indeed quite ripe for all sensitive, sensible and the responsible people just to think, rather feel what would be the meaning of the trumpeted glorified economic prosperity brought about by our space age or the computer age or the age of super technical advancement today and much more in the days to come, when the social life would be rendered full of discontent, frustration, bitterness and all sort of suffering and miseries from all sorts of psychic and physical ailments, and ultimately, in the end, placeless, purposeless and broken down with obscenity, vulgarity and crimes totally eclipsing the moral, cultural values for which our country proudly stood. If an unfortunate trend of curse of pornographic films and magazines will continue without any effective check by the Government, we just shudder to think and imagine what further curse will the twenty-first century bring to our people !! Do we want our Society of the type which cannot sleep without taking the sleeping-pills and/or down with the frustration ultimately end their lives by committing the suicide, as it is increasingly happening in the West !! If not, let us not waste any time to do the needful in the matter at the earliest.
[Para 14]
(d) Penel Code, 1860 - Sec. 376 - Sentence - Affidavit by prosecutrix which (i) shows her admission that incident took place because of their tender immature ages, (ii) her voluntary true, genuine, graceful, pardon to the accused and lastly (iii) existing set of circumstances in the society where our unwary youth is being increasingly exposed to evil influences clicks to take reasonable rather slightly lenient view in matter of sentencing the accused - Accused sentence of imprisonment of seven years under Sec. 376 is reduced to 2 years rigorous imprisonment
Undoubtedly in the first place, her admission that the incident in question took place because of their tender immature ages and in the second place her voluntary, true, genuine and graceful pardon to the accused are two going to the root vital circumstances which has surely clicked our conscience to take a reasonable rather slightly lenient view of the matter while awarding the sentence as we would not certainly like any person to be a victim of the circumstances to be further victimized by continuing him to undergo the substantive sentence of rigorous imprisonment for 7 years
[Para 8.1]
(e) Criminal Trial - Sentence - Practice & Procedure - Settled legal position that on the point of sentence there can never, never be any precedent.
The settled legal position is that on the point of sentence, there can never, never be any precedent. A Judge while imposing the sentence has to look to the peculiar facts and circumstances of that particular case, in his hand, and it is only when he is satisfied that the case calls for liberal view regarding the sentence, then on some illuminating guildelines from the higher Courts only the court takes that particular view.
[Para 7]
( 1 ) THE enigmatic problem which incidentally we have been called upon to resolve in these two appeals, one of which is for the enhancement of the sentence is a question - "whether and when in the midst of an intense rampant, unabated, psychic pollution challengingly, spreading like the forest fire all around in the society and in particular engulfing and victimizing the unguarded young generation of slippery age making them prone to commit crimes because of the mesmerizing uncontrolled obscene films exhibiting sex and crime day in and day out beamed through the channels on the TV and the Government as if unconcerned with this doing nothing about it, can the unwary victim of such psychic pollution inflicted disease be punished and if at all punished savagely for the alleged offence of rape for 7 years ? Over and above and apart parents, has indeed the Government no public duty rather accountability to its citizens to take care of their psychic health by controlling and preventing the causes spreading the most contagious disease ? what for this purpose, what indeed the Women Action Groups do effectively to prevent, regulate and control the production of indecent films and the pornographic literature being televised committing shameless continuous affront and outrage on modesty of the women, young girls and even girls of tender age to protect their modesty, dignity and honour ? In fact, what indeed all the so-called sensible and prudent members of the society and the social reformists and action groups are doing to meet with and eradicate the psychic virus spread through vulgar T. V. culture ? Is mere condemnation of blue film exhibition in theatres, T. Vs. and drama is enough without there being any supplementary concrete action by the law enforcing agency in this regard ? Whether mere enactments of certain special Acts by the parliament such as (i) The Indecent Representation of Women (Prohibition) Act, 1986, (ii) The Commission of Sati (Prevention) Act, 1987, (iii) Andhra Pradesh devdashis (Prohibition and Dedication) Act, 1988, (iv) The Medical Termination of pregnancy Act, 1971, (v) The Maternity Benefits Act, 1988, (vi) The National commission for Women Act, 1990, (vii) Dowry Prohibition Act, 1961, (viii) Adding sec. 304-B (Dowry-death) in I. P. Code, (ix) Adding Sec. 498-A in I. P. Code (cruelty by husband ). (x) Adding Secs. 113 (A) (Presumption as to the abetement of suicide by married women), 113-B (Presumption as to dowry-death) and 114-A (Presumption as to absence of consent in certain prosecutions for rape) in the Indian evidence Act, (xi) Immoral Traffic (Prevention) Act, 1956 and many others, can be said to be "be all and end all" of the matter in face of increasing crimes against girls and women which can certainly be attributed to very great extent to dirty film culture polluting innocents, impressionable young ones ? These indeed are some of the most vexed and vital and accordingly disturbing questions where almost all appear to be at total loss to understand as what to do and accordingly, we feel that judicial discretion, rather that wisdom on the point involved warrants, mandates us to discharge our duty to the society by specifically observing something which may ultimately flood-light the neglected issue awakening the social spirit and the government to attend to it now or never before it is too late. 1. 1 We at the very outset of this judgment make it clear that the constraints under which we have been called upon to highlight, resolve and recommend remedy to the problem, if possible, is not at all any justification or crime committed by accused out of his immaturity being victim of blue film culture but it is entirely because the State ultimately not satisfied with 7 years R. I. filing an appeal for the enhancement of sentence and the learned A. P. P. still further insisting upon not to reduce the sentence of the young accused, where he in our opinion cannot be held wholly accountable but
