SHYAM SUNDAR TILORI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 22.10.2008 passed by learned 6th Additional Sessions Judge, Surat in Sessions Case No. 198 of 2007, whereby, the present appellant is convicted for the offence under section 376 of IPC and sentenced to undergo 10 years rigorous imprisonment, and imposed fine of Rs. 5000/ -, and ordered 2 years rigorous imprisonment in default of payment of fine.

(2.) THE case of the prosecution in brief is to the effect that the complainant Pritiben, aged about 12 years, daughter of the present appellant Shyamsundar Tiloribhai Vishwakarma, gave a complaint to the Salabatpura Police Station, Surat City on 9.4.2007 to the effect that her mother Kiranben had died before about four years. She is staying with her father present appellant and two other younger sisters and one youngest brother. She stated in her complaint that her father is doing motor -cycle and scooter repairing work, she does the house work and her younger sister Puja is selling Gutkha etc. near the garage of his father. His father goes to work at about 8 O'clock in the morning and comes back at about 11.00 to 12.00 hours in the night to the home and she was serving meal and thereafter they all go to bed. They have one rented room and have one steel cot, on which her father used to sleep and she along with other two sisters and brother used to sleep on the floor. The complainant further stated that after the death of the mother of the complainant, before about 1 years of the complaint, the father of the complainant -present appellant had taken the complainant asleep on the cot, and thereafter, he had removed the clothes of the complainant and had also removed his own clothes also. In the meantime, the complainant had wake up and started crying but the father had shut her mouth and forcibly had the intercourse with her. The father - present appellant had also threatened the victim, and therefore, she had not complained about it to any one at that time. Thereafter, the father present appellant had repeated the same periodically with her. The complainant having no other option, succumbed to that pressure and when she could not bare any more the said assault, informed her landlord Gajanadbhai, who had also seen from the window the offence being committed by the present appellant, who in turn, had scolded the present appellant and thereafter the father had started staying at garage even at night and stopped coming to the room. Even the tiffin was also sent there. In the meantime, she informed her school teacher Sangitaben and the said teacher in turn, informed the office bearers of Women Association, and ultimately, the complainant had described the incident in details to them, and thereafter, the police complaint is filed. Along with the complaint, the birth certificate of the complainant was also given to the police. The date of birth as recorded in the school register was 19.6.1995. Based on this complaint, the offence came to be registered, the case was investigated and the accused present appellant was arrested and the charge -sheet was filed. Since the case was being triable by the Court of Sessions, the same was committed to the Court of Sessions.

(3.) THEREAFTER , the learned Sessions Judge has framed the charge against the present appellant at Exh. 5. The appellant accused has pleaded not guilty and came to be tried.