KALIDAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed against the impugned judgment and order dated 31.01.2011 passed by learned 2nd Additional Sessions Judge, Bharuch, in Sessions Case No. 25 of 2010. By the said judgment, the accused was held guilty for offences punishable under Ss. 363, 366, 376 and 302 of the Indian Penal Code (for short, "IPC"). For the offence punishable under Sec. 363 of IPC, the accused was ordered to undergo rigorous imprisonment for two years and to pay fine of Rs. 500/ - and, in default of payment of fine, the accused was ordered to undergo further rigorous imprisonment for one month. For the offence punishable under Sec. 366 of IPC, the accused was ordered to undergo rigorous imprisonment for seven years. For offence punishable under Sec. 376 of IPC, the accused was ordered to undergo imprisonment for life with fine of Rs. 500/ - and, in default of payment of fine, further rigorous imprisonment of two months was imposed. The accused was also convicted for the offence punishable under Sec. 302 of IPC and ordered to undergo imprisonment for life. All the sentences were to run concurrently. Being aggrieved by the impugned judgment, the accused has preferred present appeal.

(2.) The case of the prosecution is that the accused had took away the prosecutrix from the legal guardianship of her parents without their consent on 24.11.2009. It is alleged that on 24.11.2009 from 7 p.m. till 12 p.m. on 25.11.2009, the accused took her away and committed rape on her. The age of the prosecutrix at the time of offence was stated to be seven years. After committing rape, the accused killed the prosecutrix by throttling her neck. With these allegations, a complaint was filed against the accused before the police.

(3.) Mr. Manraj Barot, learned advocate appearing for the appellant -accused has taken us through the evidence and submitted that the impugned judgment and order is against the evidence on record. He submitted that the prosecution has failed to prove its case against the accused. He submitted that there is no eye witness to the incident and the accused is wrongly roped in. He submitted that so -called admission of the accused before the Medical Officer confessing about commission of the offence is not admissible as evidence and the accused cannot be convicted on that basis. He also submitted that there are discrepancies in the statements of the witnesses and some witnesses have also turned hostile. He submitted that this case is based on circumstantial evidence and the prosecution has failed to complete the chain, therefore, the accused is wrongly convicted by the trial Court. He also submitted that no independent witnesses have been examined by the prosecution in support of its case. He also submitted that there is no direct evidence connecting the accused with the crime and the trial Court has committed an error in convicting the accused. In view of above submissions, he prayed this appeal may be allowed, by setting aside the impugned judgment and the accused may be acquitted.