THAKOR RAMESHBHAI NARSHIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of present Appeal, the appellant challenges the judgment and order dated 17.6.2011 passed by the learned Sessions Judge, Patan, in Sessions Case No.29 of 2009, whereby the learned Sessions Judge has convicted the appellant ­ accused for the offences punishable under Sections 366 and 376 of the Indian Penal Code and ordered to undergo sentence for a period of two years rigorous imprisonment for the offence punishable under Section 366 of the Indian Penal Code and to pay fine amount of Rs.500/ -, in default of payment of fine, further to undergo simple imprisonment for a period of 10 days. The appellant was further ordered to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.500/ -, in default of payment of fine, further to undergo simple imprisonment for a period of 10 days, for the offence punishable under Section 376 of the Indian Penal Code. All the sentences shall run concurrently and the accused has been given set off the period of undergone.

(2.) Short facts of the case of the prosecution are such that the prosecutrix was married before one and half years from the incident and after a stay of one day, she was residing with her parental home. On 16.11.2008, at about 8:00 p.m. the prosecutrix and her aunt namely Babiben Hirabhai went to give answer to natural call and when they were returning, the accused came from backside and pressed the mouth of the prosecutrix and threatened by showing knife to kill the prosecutrix, if she would not come him. Therefore, her aunt Babiben Hirabhai intervened, but the accused administered the threat to kill her, if she would not go from there. Therefore, said Babiben went from that place and therefore, the accused forcefully took away the prosecutrix into bushes and committed rape upon her during the night and as alleged in the complaint, the accused committed sexual intercourse for three times upon the prosecutrix. Thereafter, the accused again threatened her to not to say anything to anyone otherwise, the accused would kill the family members of the prosecutrix. The prosecutrix was then become unconscious and in the morning hours, when the father and uncle of the prosecutrix and other persons came there, where they found that the prosecutrix was not in a position to walk on her own and therefore, she was lifted by them and came at home. Due to threats given by the accused, the prosecutrix and her family members were frightened but on next day, they went to lodge complaint at Radhanpur Police Station, where the PSI was not present and thereafter, upto 8:30 hrs., they awaited for the PSI, but thereafter, Head Constable of that police station instructed to come at next day morning for registering the complaint. Thereafter, on next day, the complainant went to the Police Station, but on that day, the PSI was not present and after 1:00 hrs. at noon, the Head Constable refused to take complaint and therefore, the complaint was lodged through the advocate before the Court of learned Judicial Magistrate First Class, Radhanpur and after recording the statement of the complainant, investigation was started and by way of complaint being M. Case No.12 of 2008, the accused was booked for the alleged offence. Thereafter, the investigating officer has filed the charge -sheet against the accused and the offence was exclusively triable by the Sessions Court, the case was committed under Sections 209 of the Code of Criminal Procedure before the Court of Sessions and same is numbered as Sessions Case No.29 of 2009. Thereafter, the learned Sessions Judge framed the charge against the accused. The plea of the accused was recorded wherein he has denied the charge levelled against him. Therefore, the trial has been conducted against the accused.

(3.) To prove the case against the accused, the prosecution examined following witnesses :