REMUBHAI BHIMABHAI VASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeals are directed against the impugned judgment and order rendered in Sessions Case No. 45 of 2008 dated 15.5.2009 by the learned Addl. Sessions Judge, Narmada at Rajpipla, recording conviction of accused Nos. 1 and 2 for the offences under Sections 363, 366, 376, 343, 346 r/w. sec. 114 of the Indian Penal Code and sentencing then for Rigorous Imprisonment for 10 years for the offence under sec. 376 r/w. sec. 114 of IPC and fine of Rs. 10,000/- each and also sentencing them for offences under sec. 363, 366 r/w. 114 to R.I. for 5 years and fine of Rs. 2,000 each and also convicted and sentenced for the offences under sec. 343, 346 r/w. sec. 114 as stated in the judgment.

(2.) The facts of the case, briefly summarized, are as follows:

(3.) Learned counsel Shri Vijay Patel referred to the charge. He also referred to the testimony of the victim at exh. 17. It was submitted that narration of the incident is not believable and the rape is not committed. He emphasised that the medical evidence suggests that there is no injury and therefore it is not possible that the offence has been committed as narrated. Learned counsel Shri Patel referred to the medical certificate of the victim at exh. 21 and submitted that in the certificate it is clearly mentioned while recording the history that she had voluntarily accompanied A-1 and the complaint was registered due to force by the parents. Learned counsel Shri Patel also emphasised that there are no marks of injury and therefore in view of her own history recorded in the medical certificate, exh. 21, the conviction could not have been recorded. He submitted that the court below has failed to appreciate this relevant evidence and has accepted whatever version stated in her testimony as the Gospel truth ignoring this vital evidence which also referred to the history recorded in the medical certificate. Similarly, he referred to the medical certificate of A-1 produced at exh. 33. He submitted that there are no marks of any injury and it clearly records, "no sign of recent forceful intercourse". He also referred to the similar certificate qua other accused and submitted that the court below has totally overlooked such evidence. He referred to the testimony of the victim at exh. 17 and again referred to the medical certificate of the victim at exh. 21 and submitted that the narration of the manner in which the offence is committed repeatedly is not at all corroborated by the medical evidence which does not mention about any injury. He therefore submitted that the court below has failed to consider such evidence. Learned counsel Shri Patel has also referred to the FSL report at exh. 60, serological report at exh. 61 and also other evidences. Learned counsel Shri Patel also referred to the testimony of the Principal of the school, exh. 54, and the testimony of the father of the victim at exh. 40 as well as the testimony of the doctor, PW-16. Learned counsel Shri Patel therefore strenuously submitted that the testimony of the victim and the father are not consistent. He emphasised that the victim in her testimony at exh. 17 has not stated that she had become unconscious. Similarly, he submitted and emphasised the discrepancy as regards the injury and submitted that she was taken to the hospital and thereafter she was taken to the police station. He emphasised about the aspect of consent referring to the history recorded in the medical certificate, exh. 21. Learned counsel Shri Patel therefore submitted that as there are no injuries and as it has been stated that she had voluntarily accompanied, it would imply that it was a case of consent.