VAJUBHAI DHANJIBHAI SHEKHALIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction and sentence dated 28th December, 2004, passed by the learned Additional Sessions Judge, Fast Track Court No.3, Bhavnagar, in Sessions Case No.153 of 2001, whereby the learned Additional Sessions Judge was pleased to convict the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment. THE appellant was also held guilty for the offence punishable under Section 447 of the Indian Penal Code and sentenced him to undergo simple imprisonment for a period of three months. THE appellant was also convicted for the offence punishable under Section 506(2) of the Indian Penal Code and sentenced him to undergo simple imprisonment for a period of two years. However, it was clarified that all the sentences shall run concurrently.

(2.) THE case of the prosecution in brief is that the complainant was residing at village Khodavadar, Taluka Gadhada with her family consisting of father, mother and her brothers and sisters. In the month of July, 2000, as mother of the complainant was suffering from some mental disease and therefore, father of the complainant took her mother to Rajkot for treatment. THE complainant was in the house with her younger brothers and sisters. It is the case of the prosecution that on the day of incident, at midnight, i.e. 12.00 hours in night, the appellant entered in the house of the complainant and by showing knife, against the wish and will of the complainant, had sexual intercourse with her. THE appellant also threatened the complainant not to tell about the incident to any one. THEreafter, after two-three days, again the appellant had sexual intercourse with the complainant against her wish and will. It is the case of the complainant that four to five times the appellant had done so. It is the case of the complainant that on all these occasion, her parents were not present in the house. It is the case of the complainant that after her parents returned from Rajkot, she told her parents about the incident. THErefore, parents of the complainant had scolded the appellant and his family members. THE appellant therefore, ran away. It is the case of the complainant prior to one-and-half-month of 18th February, 2001, the day on which complaint was given, the complainant gave birth to a child. THErefore, on 18th February, 2001 the complainant had given complaint. THErefore, offence was registered by the P.S.O. and the complainant was sent to Government Hospital for physical examination. THE Investigating Officer has recorded statements of related witnesses and gathered the evidence and as the appellant found out, he was arrested. THEreafter, as sufficient evidence was found against the appellant, charge-sheet came to be filed in the Court of learned Judicial Magistrate First Class, Gadhada. THEreafter, as the offence was exclusively triable by the Court of Sessions, the same was transferred in the Court of Sessions, Bhavnagar for adjudication.

(3.) THEREAFTER, after filing closing pursis by the prosecution, further statement of appellant under Section 313 of the Code of Criminal Procedure, 1973 was recorded. In his further statement the appellant has submitted that because of earlier rivalry between them, a false case is filed against them. He has denied the case of the prosecution and submitted he has been falsely involved in the present case.