RAJPUT ODHABHAI HARIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 19.9.2000 passed by the learned Sessions Judge, Bhavnagar in Sessions Case No. 37/1996, whereby, the learned Judge has convicted the Appellant under Section 376 of IPC and sentenced to undergo imprisonment of seven years and to pay a fine of Rs. 7000/-, in default, to undergo further S/I for seven months. The Appellant is also convicted under Section 452 of IPC and sentenced to undergo S/I for a period of six months and to pay a fine of Rs 600/-, in default, to undergo further S/I for one month. The Appellant is also convicted under Section 506(2) of IPC and sentenced to undergo S/I for six months, in default, to further undergo S/I for one month, which is impugned in this appeal. It is also ordered by the learned Judge that on payment of fine of Rs. 7000/- by the Appellant-accused, Rs. 5000/- be given to the victim-prosecutrix by way of compensation.

(2.) The brief facts of the prosecution case is as under:

(3.) It is the case of the prosecution that Jinabhai Vashrambhai is working at village Malpara as diamond polisher. It is the case of the prosecution that Jinabhai had to go at village Limbali to mourn the death of sone one and he has left his house at 7.00am. That Jinabhai went to bus sand at outskirts of village Patana and he found that the persons with whom he was to go to village Limbali had left village Patana and hence instead of going to village Limbali for mourning death, he went to village Malpara for the work of diamond polishing. It is the case of the prosecution that at Malpara diamond factory was closed and hence, he returned to his house. It is the case of Vijuben Jinabhai that on the day of incident, her husband had gone to village Limbali for attending mourning ceremony at about 10.00am, she was doing household work in the house which consists of one room and osary and her two sons were playing outside in the compound, at that time, accused Odhabhai came to her house and gagged her mouth by cloth and thereafter removed his cloths and had sexual intercourse and she tried to come out and attempted to raise shouts but accused had given threat that if she informed any one or filed any complaint, then her husband would be killed. It is also the case of Vijuben that meanwhile, she raised shouts when neighbours Rajuben and Ramjibhai as well as Dhirubhai and Prabhaben had come and meanwhile, her husband had also come and they tried to get her free and during that attempt, her husband had picked up small stick in the house and inflicted blow on the head of accused Odha with that stick. It is also the case of Vijuben that her husband was also given threat of being killed and thereafter accused Odha put on nicker and pant and ran away from the place. It is further the case of Vijuben that thereafter her husband went to village Kundal and Vijuben in company of her two sons went to village Gadhada at the place of her maternal aunt. It is the case of Vijuben that at about 4.00pm she informed her maternal aunt about the incident, who advised her to filed a complaint.