STATE OF GUJARAT Vs. PRADIPKUMAR JAGUJI THAKOR

JUDGEMENT

(1.) BOTH these Criminal Appeals are preferred against judgment and order dated 25.4.2012 passed by learned Additional Sessions Judge, Court No. 7, Ahmedabad City, in Sessions Case No. 248 of 2011. By the said judgment, accused was convicted for offences punishable under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and ordered to pay fine of Rs. 2,000/ - and in default, he was ordered to undergo simple imprisonment for six months; for offence punishable under Section 323 of IPC, the accused was convicted an ordered to undergo rigorous imprisonment for one month and for offence punishable under Section 506 (1) of IPC, the accused was convicted and ordered to undergo rigorous imprisonment for three months. Being aggrieved by the impugned judgment, the accused has preferred Criminal Appeal No. 1786 of 2012, while Criminal Appeal No. 1066 of 2012 is preferred by the State for enhancement of sentence imposed by the impugned judgment upon the accused.

(2.) AS both these appeals are arising out of the same judgment rendered in connection with the same incident and the evidence is also common in these appeals, the same are taken up for hearing together.

(3.) MR . Alok Thakkar, learned advocate for the appellant, original accused, in Criminal Appeal No. 1786 of 2012 has taken us through the oral as well as documentary evidence referred above and submitted that the prosecution has miserably failed to prove its case against the appellant. He contended that the panch witnesses have not supported the case of the prosecution and it has not been proved that the clothes which are recovered are of accused. He also submitted that apart from this, there are serious contradictions in the evidence of the complainant PW -4 and his brother PW -7 and the prosecution has failed to prove its case against the accused. He also submitted that Ramaben Chauhan, PW -8 has also not supported the case of the prosecution and the brother of the victim, PW -5 has also not stated the name of the accused in the statement before the police. He further contended that neither the medical evidence nor the pathology report supports the case of the prosecution and the accused is wrongly roped in the present offence as the accused had given a complaint against the mother of the victim i.e. the complainant regarding her illegal business of liquor. He also submitted that Medical Officer, Dr. Alpesh Zaverbhai Shah, in his cross -examination has admitted that the abrasion marks and bleeding might be possible due to self -itching by victim herself and that the injury on the private parts might be possible due to fall while playing or when something strikes against the private part. He, therefore, submitted that the accused has not committed the alleged offence and he is wrongly roped in the present case. In support of his submission, he has relied upon the definition of Hymen given in Lyon's Medical Jurisprudence & Toxicology, Eleventh Edition, 2005, which reads as under: - -