KASAM IBRAHIMBHAI MALEK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -accused against the judgment and order dated 31.5.2014 passed by learned Additional Sessions Judge, Junagadh in Sessions Case No.26 of 2013, whereby the appellant -accused was convicted for the offence under Sections 376 and 447 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for a period of five years and ordered to pay fine of Rs.2,000/ - for offence under Sections 376 of the Indian Penal Code and, in default, the appellant was ordered to undergo simple imprisonment for one month. The appellant was convicted and sentenced to rigorous imprisonment for three months and ordered to pay fine of Rs.500/ - for offence under Section 447 of IPC and, in default, he was ordered to undergo simple imprisonment for three days. Both the sentences were ordered to run concurrently.

(2.) SHORT facts giving rise to the case of prosecution are to be summarised as under:

(3.) MR .Ashish Dagli, learned advocate for the appellant submitted that star witnesses of the prosecution have not supported the case of prosecution and merely on inference, surmise and conjectures the order of conviction made by learned trial Court is liable to be quashed and set aside. He submitted that the entire case of the prosecution is based on inferences and the so called hearsay version which is not supported by any of the prosecution witnesses, under the circumstances it would be highly unsafe to rely upon the scattered piece of evidence to pass order of conviction of appellant and therefore also the Judgment and Order of conviction is liable to be quashed and set aside. He submitted that the first witness of the prosecution PW No.1 Dr. Akshay J ayantilal Hadiyal who has examined the appellant has stated that at the time when he was taken before doctor he was with police Yadi and accompanied by police personnel. It is submitted that in the cross examination of this very witness it was found that on 7.1.2013 when an attempt was made to take sample of the appellant, it could not be taken. Therefore no reliance can be placed on the evidence of this witness. He also submitted that another prosecution witness Dr.Vipul who has examined prosecutrix, he was informed by neighbour Parbat that such an act has been committed with prosecutrix and accordingly he has made remarks in the history sheet. It is submitted that it was also found that prosecutrix is married having 3 children aged about 18, 15 and 12 years. In the cross examination of this very witness, it has been admitted by him that history was given by relative. It is submitted that next prosecution witness is doctor Arjan Rathod who is serving as medical officer in Junagadh Civil Hospital and he has given certificate about illness of prosecutrix. It is submitted that it was found from the evidence of other witnesses including Dr.Jalpan PW No.4 Exh.29 and Dr.Balchandra PW No.5 Exh.13 that prosecutirx was suffering from Schizophrenia and not mentally retarded. He submitted that as far as Panch witnesses are concerned, PW No.7 Jaman Gor, exh.34 has not supported the case of prosecution who is the Panch of the place of incident. Next panch witness Gamanbhai PW No.8 Exhi.39 has also not supported the case of prosecution. It is submitted that PW No .9 Karsan Naranb Makwana who is Panch of the clothes of the prosecutrix examined at Exh.4O has not supported the case of prosecution. It is submitted that PW No.10, exh.45, Balal Rambhai Musabhai (Rabari) who is Panch of the arrest panchnama of the accused has also not supported case of the prosecution. It is submitted that next is Bhaveshbhai Vadiya PW No.11 second Panch of arrest Panch has also not supported the case of prosecution. It is submitted that PW No.12 Amradbhai Arjanbhai Exh.49 who is Panch of discovery Panchnama of clothes of the accused has not supported case of prosecution. Similarly Rajesh Arjanbhai Zala second panch PW No.13 of the said Panchnama has also not supported the case of the prosecution. It is submitted that the star witness of the case of the prosecution Parbatbhai Bhupat P.W No.16 exhi.62 Jesabhai Dayalbhai PW No.17 exh.63 and Punjabhai Sajjanbhai PW No.98 Exh.64 have not supported the case of the prosecution. Under the circumstances, in absence of any corroborative piece of evidence the learned Judge ought not to have passed the order of conviction convicting the appellant in the facts and circumstances of the case. He further submitted that the reliance placed by trial court in respect of medical evidence (FSL report) is otherwise merely a corroborative piece of evidence and not substantive piece of evidence. As can be seen from the evidence of doctor that the appellant was not in a position to give his sample of sperm and hence the manner and method in which recovery or discovery about clothes of the appellant and about the clothes of the prosecutrix does not inspire any confidence. Under the circumstances, no reliance would have been placed on such piece of evidence and hence also the order impugned is liable to be quashed and set aside and it is prayed that this appeal may be allowed.