RAYABHAI PUNJABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant accused who has been convicted for offence under section 376 of the Indian Penal Code and ordered to undergo R.I. for seven years and to pay fine of Rs. 250/- and in default of payment of fine to undergo R.I. for three months by the learned Additional Sessions Judge, Porbandar, in Sessions Case No. 29/84 has preferred this appeal challenging the legality and validity of the order of conviction and sentence. It is the prosecution case that the accused is a labour contractor, Number of labourers come from different parts of the country to Porbandar and surrounding area. The parents of the prosecutrix (Vasanti) had come near village Bhavpara and they were staying there for last about six months prior to the date of incident. They were employed in quarry-work and were living in hutment. It is an admitted position that the accused is a married man having three children. However, his wife has died. His mother was also staying with him. The accused has his house just near the hutment where the parents of the prosecutrix lived. On the night of 12/13th April, 1984 while the complainant, Laxman Gisuji, (Exh. 17) was asleep in his hutment the accused knocked the door and querried as to who was crying outside? Therefore, attention of Laxman Gisuji was drawn towards his children who were sleeping in the compound. As Vasanti, daughter of the complainant, was not found there they tried to search out. She was found lying on the road. Her skirt was almost half raised up and she was bleeding from her private parts. She was not in a position to speak. The mother of the girl, Bai Parvati (Exh. 22) took the girl to the hutment. Thereafter many persons had come there. By then the accused brought a truck in which the girl was carried to the hospital where she was admitted. The girl was given treatment and was discharged on the evening of 16th April, 1984.

(2.) As per the prosecution case, mother of the girl, Bai Parvati, asked the girl as to who had committed rape on her. She gave the name of the accused. Therefore, the complainant approached the Sarpanch who in turn asked him to file a complaint and sent Gigabhai a watchmanl with him. Thus on April, 18, 1984 at about 15.30 hours the complaint was filed with Bagvadar Police Station which is at a distance of about 32 km. from the place of incident. The complaint is produced as Exh. 18. After necessary investigation the police filed the charge-sheet. The learned Additional Sessions Judge framed charge against the accused for offence under section 376 on the allegation that on 12th April, 1984 at night in village Bhavpara when Vasanti, minor daughter of complainant Laxmanji Gisuji, was sleeping in deli of her house the accused had forcible intercourse with her and thus raped her. It was alleged that the accused had destroyed the clothes and rag and covered the place with sand pasts and thus committed an offence of causing disappearance of evidence of an offence under section 201 of the Indian Penal Code. The accused pleaded not guilty to the charge and his defence was that of denial.

(3.) The prosecution relied upon the oral evidence of the parents of the girl, i.e. Laxman Gisurji (Exh. 17); Parvati Laxman (Exh. 22). Prosecutrix, Vasanti (Exh. 20) and Prakash, younger brother of the prosecutrix (Exh. 24). Over and above the aforesaid witnesses the prosecution also relied upon other oral evidence reference to which is not very much material except the evidence of medical officers. Evidence of Dr: Kalpdnaben Batukbhai Khanderia (Exh. 25) and Dr. Arjanbhai Jeevabhai Keshwala (Exh. 21) is very much material. Further, the panchnama (Exh. 28) of the scene of offence is also important.