MANJIBHAI VALJIBHAI GAMECHA VAGHRI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal under Section 378 of the Code of Criminal Procedure is filed by the convict appellant against the judgment and order dated 6th June 2000 passed by the learned Sessions Judge, Surendranagar, in Sessions Case No, 47 of 1999, convicting the appellant original accused of the offence punishable under Sections 363, 376, and 392 of the Indian Penal Code, and sentencing to undergo R.I. for ten years and fine of Rs.3000. In default, S.I., for six months for offence punishable under Section 376 of the Indian Penal. Code, R.I. for five years and fine of Rs.1000, in default, S.I, for two months for offence punishable under Section 363 of the Indian Penal Code, R.I. for five years and fine of Rs.1000, in default, S.I. for two months for offence punishable under Section 392 of the Indian Penal Code-All the sentences are ordered in run concurrently,.

(2.) It is the case of the prosecution that the complainant, Dahyaben, wife of Bhikhubhal Takubhai Rajgor Mehta, was residing with her family members at the residential quarters of animal Husbandry Department at. Chotila. She had two daughters and one son. The victim was the eldest daughter in the family. As per the case of the prosecution, on 25th April 1999, in the evening at about 16.00 hrs, the victim had gone along with her younger brother to play near Dargah, adjoining Vishal Quarters, under the shadow of tree, and when they both did not return home in time, the complainant had gone to enquire and she found her son, Vishal, alone, but the victim was not found available at the said place and enquired from her son about the victim and he informed that she had gone towards the road. Therefore, the complainant had informed her husband and, thereafter, both, the husband and the wife, had gone in search of the victim, but the victim was not traceable. At about 21.45 hrs, the victim returned home and was crying. After consoling her, the complainant enquired from her and she disclosed that, when she was playing near the Dargah under shadow of the tree, a person wearing black clothes had come to her and allured her by saying that he would give her tamarind and took her along with him in the farm and, thereafter, committed rape on her. The victim started crying. The said person had compelled the victim to lie down and raped her. Since it was dark, the victim persisted to go back home and the accused had removed the earring of the victim and thereafter dropped the victim near road. At that time, the victim was frightened and, therefore, no further enquiry was made by the complainant. However, when the complainant saw that there was bleeding on the private parts of the victim, she informed her husband. At about 23.15 hrs, in the night, a complaint was lodged at Chotila Police Station, which was registered as First Information Report C.R. No.1-64 of 1990 for the offences punishable under Sections,363, 376 and 392 of the Indian Penal Code. The investigation was conducted by PSI, Mr. K.C. Dave, of Chotila Police Station. During the course of investigation, the PSI recorded statements of persons. The victim was sent for treatment to the hospital at Limbdi and a panchanama was drawn about the condition of her body. The statement of the victim was also recorded. The panchanama of scene of offence of dog-squad was also drawn. The clothes worn by the victim were also recovered. Thereafter, the accused was arrested and sent for medical examination. The muddamal were sent for analysis to the FSL and, after obtaining the medical certificate and FSL report, a charge-sheet was filed in the Court of the learned Judicial Magistrate, First Class, Chotila, for the offences punishable under Sections 363, 376 and 392 of the Indian Penal Code, which was registered as Criminal Case No.615 of 1999. As the offence punishable under Section 376 of the Indian Penal Code was triable by the Sessions Court, the learned Magistrate, by order dated 15th July 1999, committed the case to the Sessions Court, Surendranagar, for trial, where it was numbered as Sessions Case No.47 of 1999.

(3.) The learned Judge had framed charge against the respondent of the offences punishable under Sections 376, 63 and 392 of the Indian Penal Code. The charge was read over and explained to the appellant, who had pleaded not guilty to the same and claimed to be tried.