MOHANBHAI BABARBHAI GHODIYA PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant-orig. convict (hereinafter referred to as 'the appellant') has preferred the present appeal under Section 374 read with Section 386 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 10th October 2002 passed by the learned Special Judge, Navsari, in Special (Atrocity) Case No.19 of 2001, whereby for the offence punishable under Section 376 of the Indian Penal Code, the learned Special Judge has sentenced the appellant to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, and in default of payment of fine to undergo rigorous imprisonment for one year. However, for rest of the offences in question, the learned trial Judge has acquitted the appellant. The learned trial Judge has also acquitted the orig. accused no.2-Savitaben from the charge of offences in question.

(2.) This Court has received the memo of the appeal through Jail Authorities and Shri N.N. Prajapati, who has been appointed as amicus curiae, has submitted the case of the appellant on his behalf. Ms.D.S.Pandit, learned Additional Public Prosecutor, has made submissions in detail, whereby she has submitted that as the judgment and order of conviction and sentence recorded against the appellant is absolutely just and in accordance with law, the same should be upheld. According to her, the appellant perhaps may have served the sentence by now as he was arrested after the complaint. Even there is no reference in the judgment as to the grant of bail to the appellant by any Court. Shri Prajapati, learned counsel appearing for the appellant, states that as per the instructions received by him, the appellant has already served the sentence imposed by the learned trial Judge. However, according to Shri Prajapati, this Court should deal with the appeal on merit because the judgment and order of conviction and sentence recorded against the appellant is bad in the eye of law on account of error committed in appreciating the oral evidence of two prosecution witnesses namely the victim girl and Dr.Ramchandra Bhandarinath Patil Ex.13. According to Shri Prajapati, learned counsel appearing for the appellant, the real accused, even as per the say of the story placed by the prosecution, was one Jayesh. He had committed rape on the victim under a pretext that he would marry her. The grandfather of the victim was anxious to see that the victim gets suitable match and he may relieve himself from the social responsibility. The parents of victim girl had expired earlier and the grandfather of the victim was taking care of victim as guardian. It indirectly appears from the evidence that the grandfather had not objected about the attempts made by the appellant in finding out the suitable match for the victim but as she was not able to trace out the real culprit Jayesh, the appellant has been falsely implicated in such a serious case. The conduct of the victim also appears to be a conduct of an accomplice; meaning thereby, she was a consenting party.

(3.) On the other hand, there is strong resistance from Ms.D.S.Pandit, learned Additional Public Prosecutor, appearing on behalf of the respondent-State. According to her, the victim was being taken care of by her grandfather and he was her real guardian. There is ample evidence of this witness namely Hirabhai Ukabhai, aged about 62 years, examined by prosecution vide Ex.24, wherein he has stated that the appellant was inducing even him to entrust the duty of finding out suitable match for the victim girl. However, this witness had denied the proposal and in his absence the victim was swayed away by the appellant and his wife orig.accused no.2-Savitaben. This witness came to know that his granddaughter is missing through his wife i.e. grandmother of the victim girl. He has stated that the appellant had taken the victim with him and there was no reason for this witness to doubt about the intention of the appellant. A girl whose parents were not there, was required to be looked after with utmost care and the appellant is found responsible by the learned trial Judge for breach of trust. In the cross-examination, one fact has come on record which reveals that the appellant was the friend of the grandfather of the victim girl. It is on record that the appellant was aged about 40 years and the grandfather of the victim girl was aged about 62 years. So the appellant must be pretending to be the friend of the grandfather of the victim girl or he may have acted in the manner which has been described by the victim girl in her deposition.