BHIKHABHAI LAXMANBHAI KHARVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Challenge in this Appeal filed under Section 374 of the Code of Criminal Procedure ("the Code" for short) is to the correctness of the judgment and order dated 29.05.2003 rendered in Sessions Case No.35 of 2001 by the learned Additional Sessions Judge, 4th Fast Track Court, Veraval, by which the appellant Bhikhabhai Laxmanbhai Kharva ("the accused" for short) has been convicted for commission of the offence punishable under Section 376 & 201 of the Indian Penal Code ("IPC" for short) and sentenced to suffer RI for 10 years and fine of Rs.2,000/- and in default thereof, to undergo RI for 6 months for the offence punishable under Section 376 of IPC and RI for 3 years and fine of Rs. 1,000/- and in default thereof, RI for 3 months for the offence punishable under Section 201 of the IPC. Both the substantive sentences were ordered to run concurrently.

(2.) Since the facts of the case have been detailed in the judgment of the learned Additional Sessions Judge, Veraval, it is not necessary for us to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in this appeal are as under:-

(3.) On 29.03.2001, the prosecutrix went to play to the house of Naran from the complainant's house at about 8 O'clock in the morning. The complainant, Kishan's wife Rambai and children were in the house at about 1.00 O'clock in the afternoon and were waiting for Kishan at lunch. At that time, Kharva Bhikha Lakhman aged about 30 35 years, a married person and father of four children residing in the neighbourhood of the complainant's son, Naran, came by holding the hand of the prosecutrix to their house. He told the complainant that the prosecutrix had fallen in the sea and he has brought her by taking her out therefrom. As soon as he told so, the complainant looked at the prosecutrix as to whether she was injured or not. Her clothes were wet. There was no sign of any injury on her hand, leg and body. Her knicker put on by her was not there. The prosecutrix's mother and the complainant were looking at her. In the meantime, the blood drops were falling between the two legs of her. So, the complainant and other felt that the prosecutrix had not fallen in the sea but something had happened. Therefore, upon asking the prosecutrix as to what had happened, the prosecutrix said "i was alone playing on the otta of Rambhai near the house of Naran. Bhikha Chorvadi the accused residing in the neighbourhood of Naran came to the otta and took me to his house by holding my wrist. Nobody was in his house. I was lifted and made to lay on a bed. My frock was ripped and my knicker was taken off. He took off his pant nearly half and laid down on me. He started copulation by inserting his penis in my vagina. I was feeling pain and it was bleeding. I started crying and i resisted him by crossing my hand for getting down from me. He pressed my two hands on the cot. He got up by copulating me in lying condition after sometimes and put on the clothes. I was taken to the seashore and bathed. He has come to leave me with wet clothes to our house. There was bleeding between my legs and the accused rubbed blood with my knicker and threw it in the sea." The complainant and others realised as soon as the prosecutrix told this fact. The accused has committed the act of copulation by rape on the prosecutrix who is daughter of the complainant's son. When prosecutrix was telling these facts, the accused jumped from varanda and ran away. The prosecutrix told that when she went to play on the otta of Rambai after taking lunch at about 1.00 O'clock in the afternoon, the accused caught her wrist and took her to his house.