AMRATBHAI BHANJIBHAI GAMOT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -accused against the judgment and order dated 19.02.2011 passed by learned Sessions Judge (Chief Court), Gandhinagar in Sessions Case No.71 of 2010, whereby the appellant -accused was convicted for the offence under Sections 363, 366 and 376 of the Indian Penal Code. The learned Sessions Judge, Gandhinagar by his Judgment and order dated 19th February,2011 convicted the appellant for offence under Section 363 and ordered the appellant to undergo R.I. of 5 years and fine of Rs.500/ - and in default simple imprisonment of 15 days was imposed, for offence under Section 366 of IPC rigorous imprisonment of seven years, and fine of Rs.500/ - and in default 15 days simple imprisonment was imposed and for offence under Section 376 of IPC, rigorous imprisonment of 10 years and fine of Rs.1000/ - and in default of simple imprisonment of 30 days was imposed. The accused is ordered to undergo all sentence concurrently.

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

(3.) IT is submitted by Mr.Hajare, learned advocate for the appellant that had the learned trial Judge gone through decisions of the Apex Court the accused would not have been convicted. He submitted that there was absence of any force or coercion on the part of the appellant and therefore offence of kidnapping is also not made out. He also submitted that the Court below has seriously erred in not weighing the evidence on record and has failed to appreciate the admitted facts which were in favour of the appellant. He further submitted that Court below has failed to consider that this was a teen -age affair; that both were known to each other since long; that therefore this was not a case of rape or kidnapping. He submitted that the learned trial Judge erred in convicting the appellant for the offence under section 376 of the Indian Penal Code, without any trustworthy witness, and on the basis of unknown person's statement, the prosecution has not been able to bring anything on record to show that any untoward event occurred immediately before the sexual intercourse with the prosecutrix. He also submitted that the learned trial Judge should have appreciated according to the prosecution witnesses there was enmity between the accused and prosecution witness Bipinkumar, however, there is no sexual intercourse, hence, there was no case of the rape under section 376 of the Indian Penal Code. He submitted that the trial Judge ought to have appreciated recovery and discovery panchnama, and also the place of the incident. He submitted that the prosecution has miserably failed to prove any case against the appellant much less a prima facie case. He also submitted that the trial Court has grossly erred and has committed error both in law as well as in fact and he has not properly appreciated the evidence on record of the case. As per his say, there was no evidence of the rape. He also submitted that the allegation as to offence under sections 366 and 376 of the Indian Penal Code, is not conclusively and satisfactorily proved. He further submitted that there are contradictions between the Recovery and Discovery Panchnama, panchas have also turned hostile and have not supported the case of the prosecution. He also submitted that the learned trial Judge has failed to consider the fact that most of the prosecution witnesses are family members, relatives and of same caste and they are interested witnesses. He submitted that in view of above, this appeal may be allowed and the judgment and order of the lower Court may be reversed.