RAMESHBHAI KESHABHAI DANTANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is preferred by the appellant-orig.accused no.2 (hereinafter referred to as 'the appellant') challenging the judgment and order of conviction and sentence dated 21st April 2006 passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.5, Gandhinagar at Kalol, in Sessions Case No.52 of 2005, whereby the learned trial Judge has convicted the present appellant for the offence punishable under Section 366 read with Section 114 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5000/-, in default of making payment of fine, he is ordered to undergo simple imprisonment for six months. The learned trial Judge has also convicted the present appellant for the offence punishable under Section 363 read with Section 114 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 3000/- and in default of making payment of fine, he is ordered to undergo simple imprisonment for three months. The learned trial Judge has also ordered to run both the sentences concurrently. However, the learned trial Judge has given benefit of doubt to the present appellant so far as the offence punishable under Section 376 of the Indian Penal Code is concerned and thereby, has acquitted the present appellant from the charge of offence punishable under Section 376 read with Section 114 of the Indian Penal Code. It is submitted that the appellant at present is in jail.

(2.) Shri J.B. Dastoor, learned counsel appearing for the appellant, has taken this Court through the charge framed by the learned trial Judge and has submitted that as such there was no allegation against the present appellant of having committed any rape on the victim-girl, even then the appellant was asked to face the trial for the offence punishable under Section 376 of the Indian Penal Code. Shri P.D. Bhate, learned Additional Public Prosecutor, has expressed his disagreement to the said submissions and has submitted that normally the Court should frame separate charge for each offence committed by each individual accused person. But in the present case, the language of the charge framed creates confusion and it also indicates that the appellant was also a person responsible for commission of rape under Section 376 of the Indian Penal Code. But ultimately this defect in charge does not go to the legality and validity of the trial and suspension of mode of conviction. The appellant was very well aware that he is facing the charge of abetment for two major offences i.e. for the offence punishable under Sections 376 and 366 of the Indian Penal Code.

(3.) To appreciate the submissions made before the Court, it would be beneficial to state the basic facts which were placed by the prosecution before the learned trial Judge. It is alleged that on 18th April 2005 when the victim girl was alone at her residence and her parents had gone to attend one "Swadhyay Varg" and her old grandparents had gone to their bed, the appellant had come to the victim girl and told her that the orig.accused no.1-Kantiji, who is standing backside her house, is calling her. It is also the say of the prosecution that when the appellant was asked a positive question by the victim girl, the appellant had shown his ignorance as to for what purpose the orig.accused no.1-Kantiji was calling her. The appellant herein-orig.accused no.2, orig.accused no.1-Kantiji and father of the victim girl were cultivating a large chunk of agricultural land as partners owned by one person. So the victim girl was in acquaintance with the appellant as well as the orig. accused no.1-Kantiji. She was also doing labour work. It is alleged that the victim girl had thought that the said orig.accused no.1-Kantiji must be calling her for some work related to the agricultural land which was being carried out by them or the orig.accused no.1-Kantiji might be taking her to some other place for labour work. So she accompanied the appellant and went with the appellant where the orig.accused no.1-Kantiji was standing. Thereafter, the orig.accused no.1-Kantiji had left both of them and escaped from the said place. Thereafter, the victim was taken by orig.accused no.1-Kantiji at a distance of certain kilometres and she was confined in a hut erected near Vasaniya Mahadev in Gandinagar District. Two persons were there in the said hut but they had left the place conveniently. The victim girl could not identify them or at least name them as it was about 11-00 p.m. In that hut, the orig. accused no.1-Kantiji had done sexual intercourse with the victim girl against her wish and will, and thereby committed rape. The victim girl attempted to escape. She had also struggled to get out of the grip of the orig. accused no.1-Kantiji but she could not do anything and ultimately she was victimised by the sexual offence committed by the orig. accused no.1. On the next date of incident, she was given solace by the orig. accused no.1 that she will be sent back to her home and therefore, she was asked to board a tractor but on seeing one known person, she got down from the said tractor and with the help of the said known person, who has been examined by the prosecution in the present case, reached her home and ultimately, on persuasion she unfolded the story of the wrong committed with her. The police thereafter arrested both the accused persons and on completion of the investigation chargesheeted both of them.