TRIBHOVAN @ TILO RAYJIBHAI BHOI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is at the instance of a convict under section 376 and 506(2) of the Indian Penal Code and is directed against an order of conviction and sentence dated 15th November 2008 passed by the learned Additional District and Sessions Judge, Anand in Sessions Case No. 69 of 2008 thereby holding the appellant guilty of the offences punishable under section 376 and 506(2) of the Indian Penal Code and imposing sentence of life imprisonment and a fine of Rs. 200/ - for the offence punishable under section 376 of the Indian Penal Code; in default of payment of fine, the appellant was directed to suffer further imprisonment for one month. So far as the offence punishable under section 506(2) of the Indian Penal Code was concerned, the appellant was ordered to suffer rigorous imprisonment for one year and a fine of Rs. 100/ - with a further stipulation that in default of payment of fine, he should suffer rigorous imprisonment for one month.

(2.) BEING dissatisfied, the convict has come up with the present appeal.

(3.) MR . Upadhyay, the learned advocate appearing on behalf of the appellant strenuously contended that the learned trial Judge committed gross error in appreciating the evidence on record and in holding the appellant guilty. Mr. Upadhyay contends that according to the prosecution case, the alleged incident occurred on 13th January 2008 whereas the First Information Report was filed only on 17th February 2008, and such fact itself indicates that the allegation was a baseless one. According to Mr. Upadhyay, if we go through the evidence given by the three Doctors examined by the prosecution, it would appear that their versions are totally contradictory and none of the Doctors has confirmed the incident of rape. According to Mr. Upadhyay, the prosecution acted in a malafide way and tried to rely upon the extra -judicial confession of the accused to the Doctor when the accused was in police custody. Mr. Upadhyay contended that the alleged confession in the history of the case allegedly stated by the accused is inadmissible in evidence. According to Mr. Upadhyay, if we exclude that piece of evidence, no reasonable individual having regard to section 3 of the Evidence Act would consider the evidence adduced by the prosecution to be sufficient to conclude the guilt of the appellant. Mr. Upadhyay, therefore, prays for setting aside the order of conviction.