ASHWIN JAYANTILAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeals are directed against the order of conviction recorded by the learned Additional Sessions Judge, in Sessions Case No. 152/80 wherein the present two appellants along with one Rajendra Bharatbhai were prosecuted for offence punishable under sections 363, 376 of the Indian Penal Code. The learned Trial Judge on recording evidence came to the conclusion that the two appellants are guilty. He, therefore, acquitted the third respondent but convicted the present two appellants for an offence punishable under Section 376 of the I.P. Code and sentenced each one of them to suffer R.I. for four years, and pay a fine of Rs. 100/- i.e. further R.I. for one month. As both these appeals are arising out of the same judgment they are now being disposed of by this common judgment.

(2.) The facts leading to the prosecution and conviction of the appellants can be briefly summarized as under: At village Gambhira, the prosecutrix was staying with her mother kashiben and it is alleged that on 5-9-1980 while she had gone to answer the call of nature, the accused persons had gone there and dragged her in a Nela (Water channel) at the point of knife and there against her wished they had carnal knowledge of her. The girl is a minor aged about 15 years and hence the question of she being a consenting party is not of a great relevance.

(3.) Mr. D.K. Shah, the learned Advocate appearing for the appellants and who argued for both the appellants raised for our consideration the following points. (2) In the instant case it is extremely doubtful as to whether the incident of rape had happened at all. (3) The learned Trial Judge has convicted only on the ground that the prosecutrix is giving a vivid description of the Act of rape and hence the learned trial Judge presumed her to be right, but this according to Mr. Shah was an error inasmuch as the medical testimony is to the effect that the prosecutrix was used to sexual intercourse. In view of the above two contentions, Mr. Shah prayed that the conviction order be set aside and the accused be acquitted.