DHANANJAY UMESHBHAI SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of filing present appeal, the appellant-orig.accused Dhananjay Umeshbhai Sharma (hereinafter referred to as 'the accused') has challenged the judgment and order of conviction and sentence dated 12th December, 2000, passed by the learned Additional Sessions Judge, Surat in Sessions Case No.269 of 1999. At present the accused is undergoing sentence of imprisonment imposed by the learned trial Judge for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. The accused is ordered to undergo rigorous imprisonment for three years for the offence punishable under Section 363 of the Indian Penal Code and a fine of Rs.500/-; and in default of payment of fine, he is ordered to undergo imprisonment for one more month; for the offence punishable under Section 366 of the Indian Penal Code, he is ordered to undergo rigorous imprisonment for same period i.e. for three years and a fine of Rs.1000/-, and in default to undergo imprisonment for two more months; and for the offence punishable under Section 376 of the Indian Penal Code, he is ordered to undergo rigorous imprisonment for 10 years and a fine of Rs.2000/-, and in default to undergo imprisonment for three more months. As the substantive sentence is ordered to run concurrently under the scheme of Section 427 of the Code of Criminal Procedure, 1973, the maximum period of punishment can be said to be rigorous imprisonment for 10 years.

(2.) The judgment and order of conviction and sentence is assailed on various grounds mentioned in paragraph no.5 of the memo of appeal and it is contended that the conviction of the accused is illegal and bad in law. The finding recorded by the learned trial Judge is based on improper or illegal interpretation of evidence and the learned trial Judge ought not to have convicted the accused for the charges levelled against him. To appreciate the say of the accused placed before us and the resistance placed by the respondent-State, it would be appropriate for us to state the following facts placed by the prosecution in brief :

(3.) It is alleged that in the ghastly offending act, one minor girl aged about 2 years has been raped by the accused-Dhananjay on 16th May, 1999 at about 08-00 p.m. Gajendra Pande-complainant-father of the victim, at that point of time had gone to attend one marriage ceremony. Renuka-wife of the complainant, her minor daughter i.e. victim and Devendra, brother of the complainant, who was sick, were at home. Renuka was preparing food and her daughter-victim was playing on the abutting "Otta". After some minutes, Renuka tried to ascertain the presence of her daughter-victim and she found that her daughter was not there. Therefore, she asked her neighbour-cum-tenant Shri Vijaykumar about her daughter-victim and asked him to help her in finding out her daughter-victim if she is in the nearby area or not. At about 09-00 p.m. to 09-15 p.m., the said Vijaykumar brought her daughter-victim in practically unconscious and bleeding condition and he informed Renuka that the accused-Dhananjay was sleeping with her daughter-victim on the bank of "Khadi" situated behind her residence.