FAROOQBHAI FARIDBHAI CHHIPA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed by the appellant being aggrieved and dissatisfied with the common judgment and order dated 25-9-1993 passed by the learned City Sessions Judge, Ahmedabad, in Sessions Case Nos.299 of 1989 and 300 of 1989 whereby the appellant was convicted and sentenced to undergo RI for one year and to pay fine of Rs.1,000/- in default to suffer further RI for three months for the offence punishable under Se.354 of IPC. However, the appellant was acquitted for the offence punishable under Sec.376 of IPC giving benefit of doubt.

(2.) Case of the prosecution in short is that on 29-4-1988, one Sumatiben Banaji took the victim, who is married to one Ankalji Praladji of Village Garen in Mehsana District having two children, for casual labour to the factory of one Farukbhai Faridbhai (the appellant herein). In the evening, when the victim was to return home after the work, she was told to do concrete work for some more time as she had come at 10 a.m. and she worked upto 7 p.m.. While she was returning, she was followed by the appellant on his scooter and told her that she had taken Rs.200/- and saying so, she was taken back to factory premises. She, however, told that she had not taken the money and that she had only Rs.2/- in her purse. The appellant told her that her search is to be made and hence, she was asked to remove her clothes and the appellant outraged her modesty and when he kept his hand on breast of the victim, she shouted but she was threatened with a wooden piece. Therefore, a complaint was lodged by the victim on 30-4-1998 at 21.15 hours which is at Ex.29. The Investigating Officer thereafter started investigation, sent the victim to L.G.Hospital for medical treatment, took statements of Watchman at the place of incident, parents of the victim and drew panchnama of place of incident at Ex.18. The appellant-accused appeared himself before the police station and produced stick by drawing panchnama at mark 8/1. After receipt of medical certificate of victim, charge sheet was filed against the accused in the Court on 2-5-1988 and thereafter committal order was passed by the learned Magistrate and case was numbered as Sessions Case No.299 of 1989. Thereafter, on 6-5-1988, the victim lodged another complaint about commission of rape by the accused. Therefore, further statement of the victim was taken in this regard and clothes worn by the victim was recovered under panchnama at Ex.16. Victim was again sent for treatment to Civil Hospital and statements of witnesses were also further recorded and report was sent to Court for addition of Sec.376 of IPC and sought permission for further investigation. Thereafter, on 8-5-88, statement of Ramtuji Somaji was recorded and accused was sent to Civil Hospital for examination on 12-5-88 and clothes worn by the victim was sent to FSL for analysis. On receipt of FSL report at Exs.25 to 27 and certificate from Civil Hospital on 30-5-88, same were kept with investigation papers. At the end of investigation, charge sheet was filed against the accused on 13-6-88 and thereafter committal order was passed by the learned Magistrate and case was numbered as Sessions Case No.299 of 1989.

(3.) As both the cases arise out of the same incident, by an order dated 15-11-1989 passed below Ex.1 in Sessions Case No.299 of 1989, charge against the accused at Ex.2 was framed in Sessions Case No.300 of 1989 and evidence was led in Sessions Case No.300 of 1989 and both the cases were tried together.