LAWS(GJH)-2007-10-220

DARBAR ISHWARJI BABARJI Vs. STATE OF GUJARAT

Decided On October 18, 2007
DARBAR ISHWARJI BABARJI Appellant
V/S
STATE OF GUJARAT Respondents

JUDGEMENT

(1.) This appeal is preferred under the provisions of Section 374 of the Code of Criminal Procedure, whereby the appellant-original accused No.2 has challenged the legality and validity of the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court, Patan on 3rd October, 2003, in Sessions Case No.10 of 2003. There were total six accused persons and the learned trial Judge has charged and tried them for the offence punishable under Sections 363, 366, 376, 394 read with Section 109 and 114 of the Indian Penal Code. However, at the conclusion of the trial the learned Judge was pleased to acquit the original accused No.1 and original accused Nos.3 to 6 from all the charges levelled against them. Whereas, the learned trial Judge was pleased to convict the appellant-original accused No.2 for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code and sentenced him as under:

(2.) The judgment and order of conviction and sentence has been assailed on various grounds as mentioned in paragraph 4 of the memo of appeal. According to learned trial Judge, the prosecution was successful to bring home the charge against the original accused No.2-present appellant. Miss C.M.Shah, learned Advocate appearing for the appellant-original accused No.2 has submitted that the finding arrived at by the learned trial Judge is erroneous and same is based on improper appreciation of evidence especially the conviction recorded for the offence punishable under Section 376 of the Indian Penal Code, the learned trial Judge has considered some inadmissible evidence mainly the statement of the prosecutrix made before the doctor at the time when she was taken for medical examination by the Investigating Agency.

(3.) On the other hand, Ms.Pandit, learned A.P.P. has submitted that the appellant is responsible for committing heinous crime of kidnapping and rap of victim younger-girl, who is below fourteen years of age as per the birth date reflected in the school leaving certificate which has been received in the evidence during trial. It has come on record that two real sisters were kidnapped and thereafter were subjected to sexual abuse and were rapped. The Police was able to trace out the original accused Nos.1 and 2 as well as both the victim girls after several days from the date of their kidnapping. It is the say of prosecution that the original accused Nos.3 to 6 were the abettors to the main offence committed by original accused Nos.1 and 2, but the totality of the evidence as led by the prosecution takes to the conclusion that there is cogent evidence against the present appellant-original accused No.2 and therefore he has been held guilty for the aforementioned offences. The learned trial Judge has considered the F.S.L. Report for linking the accused with the crime so far as the offence punishable under Section 376 of the Indian Penal Code because both the victim girls committed suicide after about fifteen days from the date on which both the girls were brought to the native village and / or parental home. Before they were taken to Government Hospital for medical examination, ossification test of one of the victim was also carried out on demand made by the Investigating Officer. Statements of these two victim girls were recorded and the medical certificate issued by the doctor shows that hymen of victim younger-girl who was rapped by the present appellant-original accused No.2 was not intact and / or torn hymen. Therefore, it would not be proper to say that the finding recorded by the learned trial Judge is either perverse or patently illegal.