STATE OF GUJARAT Vs. AYUBBHAI ISMAILBHAI AND OTHERS

JUDGEMENT

(1.) This appeal is preferred by the State of Gujarat appellant-original complainant against the judgment and order of acquittal by the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad by which order of sentence passed by the lower court against accused nos.1 to 7 dated 23.01.1991 in Sessions Case No.37 of 1990 came to be set aside. Brief facts of the case of the prosecution are as under:

(2.) The complaint was lodged by victim Savitaben with Sarkhej Police Station on 14.11.1989 at about 2.15 pm. It is her case in the complaint that on 04.11.1989 at about 9.00 pm appellant-accused no.2 Nadir came near the house of the complainant in the company of appellant-accused no.1 and 3 by Rickshaw bearing no.2731 and her two sisters Lalita & Usha were seated in the rickshaw. At that time, she was standing near her house and her mother was sleeping inside the house. It is her further case that all the three of them, viz. appellant nos.1 to 3 caught her and forcibly took her in the rickshaw saying that if she was not taken she would reveal the incident. All the three of them were taken onto the terrace of a house under construction in Tavakkal Society (Sarkhej) where all the three of them slept during night. On the next day morning, on Sunday, i.e. 5.11.1989 all the three of them were taken to the house of appellant no.4 Govind at about 7.00 a.m. by rickshaw No.2731 of accused No.2 Nadir. All the three sisters stayed at the house of appellant no.4 Govind for two days. Lilaben-wife of appellant no.4 Govind was also present in the house. On Tuesday (7.11.1989) all the three sisters were taken to the house of appellant No.5-Jamal at Village Ratanpura where neither any lady nor any child was present. However, household articles were there. All the three sisters used to prepare the food and dine there. On Thursday (9.11.89) appellants no.1, 2 & 3 came there at about 1.30 pm by rickshaw No.2731 and they went away in the company of Lalita & Usha by rickshaw. It is her further case that appellant no.5 Jamal committed rape on her against her will and by using force and he also committed unnatural offence with her at about 2.00 pm on the same day noon. It is her further case that present appellant no.6 Jayanti brought Lalita & Usha to the house of appellant no.5 Jamal on a scooter, after midnight at about 1.30 am. It is also her case that appellant accused no.6 Jayanti and her sister Usha had slept in the last room at night and thereafter appellant no.6 Jayanti went away on scooter, on the next day morning at about 6.00 pm. That appellant no.2 Nadir came there on Friday (10.11.1989) at about 8.00 pm. He came alone on foot, he and complainant's sister Lalita slept together in the room and thereafter appellant no.2 Nadir went away at about 12.00 midnight. That appellant no.2 Nadir had extended invitation to her both the sisters Lalita & Usha to come to see a movie and hence all the three sisters went to Sangam Talkies, Sarkhej by bus at 5.00 or 5.30 pm on Saturday, 11.11.1989. The present appellant Nos.1, 2 and 3 met them at Sangam Talkies and all the three of them went to purchase cinema tickets in the company of her two sisters. Thereupon, complainant escaped and went to her mother and informed her about what had happened. One Hemtaji who is treated as brother of complainant's mother Jiviben was also informed and all the three of them went to the places mentioned above in search of Lalita & Usha, but they did not find either Lalita or Usha or any of the appellants. Thereafter, complainant Savita lodged complaint with Sarkhej Police Station on 14.11.1989 at 2.15 pm. During the course of the investigation, prosecution made out a further case that appellant no.1 and appellant no.7 had committed rape upon Lalita and appellant nos.2 and 3 committed rape upon Usha on the night of 4.11.1989 in the terrace of a building of Tavakkal Society. The prosecution also made out a case during investigation that during the stay of these three victims at the house of appellant no.5-Jamal, accused no.1 and accused no.7 had committed rape on Lalita, while accused no.2 Nadir and accused No.5 & 6 Jamal and Jayanti had committed rape on Usha. The prosecution made out a case that appellant No.4 Govind had kept all the three girls at his house knowing that all the three girls were kidnapped. Similarly, prosecution also made out a case that appellant no.5 had kept all the three girls at his house knowing fully well that these three girls were kidnapped.

(3.) The original accused of Sessions Case No.37 of 1990 of this Court were charge sheeted by Sarkhej Police Station for the offences punishable under section 363, 366, 376, 377, 343 and 114 of Indian Penal Code in respect of the offences registered at C.R. No.I-177 of 1989 of Sarkhej Police Station. The accused were committed to the Court of Sessions and the Sessions Case No.37 of 1990 was transferred to the Court of the learned Assistant Sessions Judge, who framed charge at exh.5 against all accused persons for different offences. The learned Assistant Sessions Judge conducted the trial and recorded evidence of all the prosecution witnesses and also recorded further statements of the accused under section 313 of Criminal Procedure Code. Thereafter arguments were heard and by judgment dated 03.01.1991, the learned Assistant Sessions Judge convicted the accused under section 235(2) of the Code of Criminal Procedure. Accused Nos.1, 2 and 3 were convicted for the offences punishable under sections 363, 366 and 114 of Indian Penal Code, and they are sentenced to suffer each rigorous imprisonment for a period of two years and to pay a fine of Rs. 250.00 each in default to suffer further rigorous imprisonment for a period of 15 days for each of the aforesaid offences. Accused no.4 was convicted only for the offence punishable under section 368 of Indian Penal Code and was sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 250.00, in default to suffer further rigorous imprisonment for a period of 15 days. Accused nos.1, 2 and 3 were further convicted and along with them accused nos.6 and 7 were also convicted for the offences punishable under section 376 read with 34 of Indian Penal Code and sentenced each to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 1000.00 each in default to suffer further rigorous imprisonment for a period of two months for the aforesaid offence. Accused no.5 was further convicted for the offence punishable under section 368 of Indian Penal Code, and was sentenced to suffer rigorous imprisonment For a period of two years and to pay fine of Rs. 250.00 in default to suffer further rigorous imprisonment. For a period of 15 days for the said offence and he is also further convicted of the offences punishable under section 376 read with 511 and also for the offence punishable under section 377 of Indian Penal Code, and was sentenced to suffer rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 750.00 in default to suffer further rigorous imprisonment for a period of 1 month for each of the aforesaid two offences. The learned Judge ordered that the substantive sentences inflicted upon appellant nos. 1, 2, 3 & 5 should run concurrently. Being aggrieved by this judgment and order of conviction and sentence, the appellants - original accused preferred the appeal before the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur.