BIPINKUMAR HARIBHAI KUMBHANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is filed against the judgment and order dated 18th May, 2006 passed by the learned Sessions Judge, Junagadh, in Sessions Case no.68/1996 by which the learned Sessions Judge convicted the present appellant-accused for the offence punishable under Section 376 of the Indian Penal Code and sentenced him to suffer R.I. For 10 years and imposed fine of Rs.5000/-, in default, of payment of fine to suffer further S.I. for one year. It was further ordered that the amount of fine of Rs.5000/-, if paid, be given to the victim as compensation.

(2.) In brief, it is the case of the prosecution that the incident in question took place on December 19,1995 at 1.00 p.m. while the complainant was watering the sugar-cane plantation in her field. At that time, suddenly the present appellant- accused came from behind the complainant caught hold of her, dragged her and against her will raped her. It is the say of the complainant that the accused appellant then took out a knife, pointed out the same at her and threatened to kill her if she discloses regarding the incident to anyone. Due to the incident as her clothes were stained she washed her clothes. When her father and mother came to the field, she informed them about the incident and thereafter, she lodged complaint against the present accused at Mendarda Police Station whereupon offence was registered, investigation was carried out by PSI Mansing Pratap Mahida and the accused came to be arrested. During the investigation, he recorded the statement of concerned persons, sent the complainant tor medical examination at the hospital, collected the medical evidence, drew necessary Panchnamas and sent the Muddamal to Forensic Science Laboratory for chemical analysis. Thereafter as the Investigating Officer PSI Shri Mahida was transferred the investigation was taken over by PSI R.H.Jadega who filed charge-sheet against the present appellant-accused. Thereupon, the learned Judicial Magistrate, First Class, passed an order to commit the case to the Court of Sessions under Section 209 of the Criminal Procedure Code as the offence in question was exclusively triable by the Court of Sessions which was numbered as Sessions Case no.68 of 1996. The learned Sessions Judge, Junagadh, framed charge for the offence punishable under Sections 376, 506(2) of the Indian Penal Code and also framed charge under Section 135 of the Bombay Police Act against the present appellant-accused. The present appellant denied the charges, and hence, to prove the charges against the present appellant-accused, the prosecution has examined 12 witnesses and also produced several documentary evidence. Thereafter, further statement of the appellant-accused under Section 313 of the Criminal Procedure Code was recorded by the learned Sessions Judge wherein the present appellant accused stated that because of enmity a false case is filed against him and he also stated that he does not want to examine any witness or give deposition on oath. After hearing the learned Advocates of both the parties and considering the evidence on record both documentary as well as oral, as also the written arguments submitted by the Public Prosecutor vide Exh.69 and the written arguments submitted by the learned Advocate for the accused, the learned Sessions Judge held the accused guilty of the offence under Section 376 of the Criminal Procedure Code and passed the judgment and order of conviction and sentence as stated in para-1 of this judgment.

(3.) Learned Advocate Mr. J.B.Mehta for the appellant-accused submitted that the learned Sessions Judge has failed to appreciate the oral as well as documentary evidence on record in its true perspective and arrived at a wrong conclusion. It is also submitted by learned Advocate Mr. Mehta that the learned Sessions Judge has materially erred in holding that at the time of incident, the victim was below the age of 16 years and wrongly held that at the time of incident the victim was minor and that she was aged 14 years and 2 months at the time of incident. It is also argued by the learned Advocate that there is contradiction between the complaint of the complainant and her statement before the police as also her evidence on oath before the learned Judge. According to the learned Advocate, in spite of that, relying upon such evidence, the learned Sessions Judge has erred in convicting the appellant-accused. It is also argued by the learned Advocate Mr. Mehta that the medical evidence does not support the case of the prosecution and the story put forward by the prosecution is not at all believable and the appellant-accused is wrongly convicted. Lastly, he submitted that taking into consideration the entire evidence on record, the sentence awarded by the learned Sessions Judge is very excessive and prayed for reducing the sentence passed against the appellant- accused.