THE STATE OF GUJARAT Vs. PATEL DALSUKHBHAI DEVSHIBHAI

JUDGEMENT

(1.) PRESENT appeals are directed against the judgment and order dated 12/12/2006 passed by the learned Principal Sessions Judge, Mahesana in Sessions Case No. 40 of 2006, whereby, the respondent herein - original accused came to be convicted for the offence punishable under Section 376 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and sentenced to undergo rigorous imprisonment for six years and a fine of Rs. 20,000/ - and in default of payment of fine, to undergo further simple imprisonment for one year. The accused was also convicted for the offence punishable under Section 324 of the IPC to undergo rigorous imprisonment for three months and a fine of Rs. 1,000/ - in default of payment of fine, to undergo simple imprisonment for 15 days. Accordingly, Criminal Appeal No. 393 of 2007 has been filed by the State for enhancement of sentence, whereas, Criminal Appeal No. 141 of 2007 has been filed by the original accused against conviction.

(2.) THE brief facts of the prosecution case are that the prosecutrix, along with her husband, who was serving in a factory named Hari PVC Pipes and resided in the factory compound itself in the small room. On 16/09/2005, the day of incident, the husband of the prosecutrix had gone on duty and after completing petty household works, the prosecutrix went to the bathroom for washing the clothes and bathing. At that time, the accused, the owner of the factory, came there and when the prosecutrix asked him as to why he had come there, he closed the door of the bathroom and hence, the prosecutrix shouted, however, the accused shut her mouth with hands and thereafter, committed rape against her will. When the prosecutrix tried to rescue herself, the accused also bite her on her small finger of left hand. Thus, the accused committed the alleged offence for which, complaint came to be lodged against the accused for the offence punishable under Sections 376, 324 and 506(2) of the IPC.

(3.) Whereas, Ms. Shah, learned Additional Public Prosecutor, for the State contended that if the evidence of the complainant/prosecutrix is referred, she has narrated the facts completely. She further submitted that the place of incident was the bathroom where, in the normal circumstance, the accused ought not to have gone. Further, she submitted that from the cross -examination of the victim it is clear that it was not with consent and this defence of consent is also not accepted by the trial Court. She submitted that the evidence of the victim is required to be accepted inasmuch as she has narrated the whole fact and merely because she being 21 years old, did not disclose the incident at first instance, her case may not be doubted and on that ground, the complete story put forward by the prosecution may not be rejected. Ms. Shah, learned Additional Public Prosecutor, took us to the cross -examination of the prosecutrix, which clearly suggests that the defence put forward by the accused of consent was categorically denied by the prosecutrix. In support of her submissions, she relied upon the following decisions: