SUNILBHAI DAHYABHAI KHARVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant is convicted by Sessions Court, Vadodara for offence punishable under Sections 377 and 363 of the Indian Penal Code (for short "IPC") and also under Section 3(2X5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (for snort "Atrocity Act") and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000 in default to undergo further RI for 3 months for the offence punishable under Section 377 of the IPC. For offence punishable under Section 363 of the IPC, he is ordered to undergo further RI for 7 years and to pay a fine of Rs. 2000 in default to undergo RI for 3 months. For the offence punishable under Section 3(2)(5) of the Atrocity Act, he is ordered to undergo RI for 6 months and to pay a fine of Rs. 1000 in default to undergo further SI for one month. All the sentences were ordered to run concurrently with benefit of set off.

(2.) The alleged incident took place on 19.4.2004 between 6.30 p.m. and 10.30 p.m. when the appellant allegedly kidnapped minor Manoj aged about 6 years on his Mopad No. GJ6H 5607 by alluring him for a ride on the said two wheeler. He took the victim to a field near Highway Bridge, near village Kapurai and thereafter, established physical relation against nature with Manoj and then dropped the victim near his house. On being asked by his father, minor Manoj disclosed everything to his father Sureshbhai Tadvi, who therefore, lodged the FIR before the Vadi Police Station, Vadodara on 21st April, 2004. On basis of which, offence was registered and investigated. After investigation, the police having found sufficient material against the appellant, filed charge-sheet in the Court of JMFC, Vadodara, who in turn committed the case to the Court of Sessions and Sessions Case No. 19 of 2004 came to be registered. Charge was framed against the accused at Exhibit 9, to which the accused pleaded not guilty and claimed to be tried. Considering the evidence led by the prosecution, the trial Court found that the appellant is guilty of the offence punishable under Sections 373 and 366 of the IPC and also under Section 3(2)(5) of the Atrocity Act and punished him as stated hereinabove and hence, this appeal.

(3.) Learned Advocate Mr. Majmudar for the appellant submitted that the evidence led by the prosecution is not sufficient to record conviction. Possibility of the indication found by the Doctor being case of constipation suffered by the victim cannot be ruled out. What would be left behind, therefore, would be mere evidence of minor Manoj, not supported or corroborated by any other evidence and therefore, the trial Court could not have recorded conviction for the offence punishable under Section 377 of the IPC. So far as other pieces of evidence are concerned, the evidence is only in the form of deposition of minor Manoj and not much reliance can be placed on considering his immature age. Mr. Majmudar therefore, submitted that the appeal may be allowed.