DHARMENDRA RAMRAJ GAUTAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 30.11.2007 passed by the learned Presiding Officer, 2nd Fast Track Court, Surat in Sessions Case No.48 of 2007, whereby the appellant is ordered to undergo rigorous imprisonment for a period of 10 years and fine of Rs.5,000/ -and in default, to further undergo 6 months' rigorous imprisonment. It may be noted that the amount of fine is not paid.

(2.) THE appellant, aged about 30 years, was staying in Jawaharnagar Jhumpadpatti at Surat. On 6.8.2006, the appellant who was staying in the adjoining house gave Rs.5/ - to Amba, the elder daughter of the first informant Sunandaben Sanjaybhai Raghunath, to fetch a packet of Biscuit and thereafter, taking advantage of the situation, entered the house of the first informant, wherein the prosecutrix Aruna aged about 3 years was alone. The appellant thereafter took out panty of the prosecutrix and he also became naked and in lust, committed rape upon the prosecutrix. With this factual matrix, FIR came to be lodged and after investigation, chargesheet came to be filed and the case was committed to the learned Sessions Court, Surat which came to be registered as Sessions Case No.48 of 2007 before the learned Fast Track Court, Surat. The learned Sessions Judge framed the charge at Exh.2 and as the appellant did not plead guilty, hence, trial was conducted. The prosecution led oral as well as documentary evidence in form of deposition of the prosecutrix, deposition of the original complainant as well as deposition of the Doctors who examined the prosecutrix and other documentary evidence. The appellantaccused has not examined any witnesses. After fullfledged trial, on appreciation of the evidence on record, the Presiding Officer, 2nd Fast Track Court, Surat by the impugned judgment and order dated 30.11.2007 convicted the appellant and the appellant has been sentenced, as stated hereinabove. Being aggrieved by the same, the present appeal is filed.

(3.) MR . Apurva Dave, learned advocate for the appellant has made two fold submissions. It was contended that the medical examination of the appellant is not conducted and therefore, it cannot be presumed that the rape has taken place and it was contended that in absence of the same, conviction is wrongly recorded. Secondly, it was contended that the prosecution has not proved the incident to its hilt and therefore, the learned Sessions Judge has failed to appreciate the evidence on record and has wrongly relied upon the deposition of the prosecutrix who was admittedly a minor. It is therefore submitted that the appeal may be allowed.