YUNUSHSHA IBRAHIMSHA @ CHHOTUSA FAKIR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CRIMINAL Appeal No. 2173/2010 has been preferred by the appellant -original accused no. 1 under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 8.9.2009 passed by the learned Sessions Judge, Jamnagar in Sessions Case No. 36/2008, whereby, the learned trial Judge has convicted the appellant -ori. Accused no. 1 under sec. 376 of IPC and sentenced to undergo R/I for 10 years and to pay a fine of Rs. 2000/ -, in default, to undergo further S/I for one month. Criminal Appeal No. 526/2010 has been preferred by the appellant -State under sec. 378 of Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 8.9.2009 passed by the learned Sessions Judge, Jamnagar in Sessions Case No. 36/2008, whereby, the learned trial Judge has acquitted the accused no. 1 for the offence under sec. 504 and 506(2) of IPC and accused no. 2 for the offence under sec. 324, 504 and 506(2) of IPC and under sec. 135(1) of the Bombay Police Act, which is impugned in these appeals. Both these appeals arise from the judgment and order dated 8.9.2009 passed by the learned Sessions Judge, Jamnagar in Sessions Case No. 36/2008, they are heard together and disposed of by this judgment.

(2.) AFTER considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 8.9.2009 has convicted the appellant - original accused no. 1 of Criminal Appeal No. 2173/2010 and acquitted the respondents of Criminal Appeal No. 526/2010, as stated above.

(3.) THE learned advocate Mr. Budhhbhatti for the appellant -ori. Accused no. 1 of Criminal Appeal No. 2175/2010 has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant be given the benefit of doubt and be acquitted. It has been further submitted by the learned advocate Mr. Buddhbhatti the case is based on the medical evidence and the evidence of prosecutrix, and therefore, this case would fall within the purview of an attempt to commit the rape and not rape. He has heavily relied on the medical evidence. This was the only contention raised before us. As far as conviction under section 376 of IPC is concerned, learned advocate has relied on the provisions of section 511 of IPC and submitted that at the most, it can be said that it was a case of an attempt to commit rape but it was not a rape, and therefore, the appeal deserves to be allowed.