AJAYBHAI VAJUBHAI MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -accused against the judgment and order dated 24.12.2014 passed by learned Additional Sessions Judge, Jetpur in Sessions Case No.2 of 2014, whereby the appellant -accused was convicted for the offence under Sections 323, 452, 506 (2) and for the offence under Section 376 read with Section 511 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for a period of four years and ordered to pay fine of Rs.10,000/ - for offence under Sections 376 of the Indian Penal Code and, in default, the appellant was ordered to undergo simple imprisonment for one year. The appellant was convicted and sentenced to undergo rigorous imprisonment for one year and ordered to pay fine of Rs.500/ - for offence under Section 323 and in default he was ordered to undergo simple imprisonment for three months. The appellant was convicted and sentenced to undergo rigorous imprisonment for two years and ordered to pay fine of Rs.1,000/ - for offence under Section 452 and, in default, he was ordered to undergo simple imprisonment for six months. The appellant was convicted and sentenced to undergo rigorous imprisonment for two years for offence under Section 506 (2) of IPC. All the sentences were ordered to run concurrently.

(2.) THE case of the prosecution in short is that: -

(3.) MR .Deep Vyas, learned advocate for the appellant submitted that the judgment and order conviction and sentence passed by the learned trial Court is bad, illegal and perverse and, therefore, it is required to be quashed and set aside. He submitted that the impugned judgment and order passed by the court below is against settled principle of law and is based on non -consideration of the oral and documentary evidence adduced before it. He submitted that the impugned order is illegal, unjust, arbitrary and contrary to the facts and evidences on the record as well as without application of mind. He also submitted that the learned trial Court has wrongly relied upon the deposition below Ex -27 of the medical officer Dr.Kaushikkumar Dholaria. He submitted that the court below has failed to appreciate that the medical officer had specifically admitted in his deposition that the victim was brought for examination, wherein in the history she had narrated that on 16.11.2013 at 9.00 p.m. the accused had entered her house with force and had caused her injuries. However, surprisingly, the complainant, in the complaint had alleged that on 15.11.2013 around 9:00 a.m. accused had entered the house and upon finding her alone committed the offence. He also submitted that the court below has erred in considering the deposition below Ex.23 by the medical officer Dr.Mansukhbhai Gajera, who had examined the appellant. The learned trial Court has failed to appreciate that the said medical officer would state that during medical examination of the appellant neither any injuries or any marks were found on the body nor were there any blot on the appellant's clothes. The said officer in cross examination would admit there was no evidence about the appellant having physical intimacy with victim.