VALLABHBHAI AVSARBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant - original accused has filed this appeal under Section 374 of the Code of Criminal Procedure, challenging the judgment and order of conviction and sentence dated 17.4.1999 passed by the learned Sessions Judge, Bhavnagar, in Sessions Case No.113 of 1998, convicting the accused for the offence punishable under Section 376 of IPC and sentencing him to suffer R.I. for 10 years and to pay a fine of Rs.10,000/-, in default, to undergo two years' S.I.

(2.) The facts giving rise to the prosecution case, in brief, are as under: The complainant Mancharam, uncle of the prosecutrix Rojita, is residing at Bhavnagar while his other brothers Vishnubhai and Jayantibhai (father of the prosecutrix) are residing at village Haripura. The complainant had gone to Haripurapar on 14th Jan.1998, when his mother informed him that the daughter of Jayantibhai aged about 8 years had gone to her school and during recess time, accused took her to his house. It is the prosecution case that accused at first asked the prosecutrix to purchase a match box and to give the same to his mother at his residence. The prosecutrix, after purchasing the match box, went to the house of the accused. She found that the mother of the accused was not there. The accused thereafter came and closed the door from inside and thereafter made the prosecutrix to lie down, removed her knicker as well as removed his pant and lied down on the prosecutrix. After some time she came out of the house and was weeping. It is the case of the prosecution that the friends of the prosecutrix who had gone to school had gone to the house of Jayantibhai and informed Lilaben that prosecutrix was confined in the house of accused and she is weeping. Lilaben therefore went towards the school running and found the prosecutrix, crying, near the house of the accused. The prosecutrix narrated the incident to Lilaben. She waited for her husband Jayantibhai, who is mentally retarded, to come. In short, the complainant Mancharam, was informed about the incident on 14th January 1998. The complainant took the prosecutrix to Bhavnagar where he discussed this incident to his friend Natubhai, who advised him to file the complaint, accordingly the complaint came to be lodged on 16th January 1998 before Gadhada Police Station, registered as C.R.No.I-11 of 1998 and the investigation was started. The panchnama of the scene of the offence was drawn; the clothes of the prosecutrix were attached; and the prosecutrix as well as the accused were examined by Dr.Narendra Trambaklal. After completion of the investigation, the chargesheet was submitted by the police before the learned JMFC, at Gadhada, who in turn, committed the case to the Sessions Court at Bhavnagar as the offence was exclusively triable by the said Court.

(3.) The charge at Exh.3 was framed against the accused who pleaded not guilty to the same and claimed to be tried. In the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, he has come out with a case that a false case is filed against him as there is a dispute of monetary transaction by the accused and the complainant's brother. The learned trial Judge, after appreciating the oral as well as documentary evidence on record, including the statement recorded under Section 313 of the Code of Criminal Procedure, recorded a finding that the prosecution has established the charge levelled against the accused beyond reasonable doubt and accordingly, convicted the accused for the offence punishable under Section 376 of IPC.