VASU RAVA RABARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present criminal appeal has been filed by the appellant - original accused under Section 374 of Code of Criminal Procedure, challenging the judgment and order of conviction and sentence, passed by the learned 9th Additional (Ad-hoc) Sessions Judge, Kachchh-Bhuj (herein after referred to as 'the trial court') on 21.01.2016 in Special Case (Atrocity) No.27 of 2014, whereby the appellant has been convicted for the offences under Section 328 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years with fine of Rs. 3,000/- in default to further undergo simple imprisonment for two months, and for the offence under Section 452 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years with fine of Rs. 2,000/- in default to further undergo simple imprisonment for one month, and also for the offence under Section 506(2) of Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years with fine of Rs. 2,000/- in default to further undergo simple imprisonment for one month.

(2.) The facts giving rise to the present appeal are that on 30.01.2014, while the complainant was taking bath at her home, the appellant slipped into the bathroom from the open space of the top portion and by pointing the knife to the prosecutrix under the threat, made her to consume Phenyl. Thereafter, the accused abused her and threatened to the victim and abused her by insulting her caste. Thereafter, the victim made hue and cry for help. Upon hearing her shouts, her mother Khatuben and elder brother of her father Jerambhai came there to her help. Upon seeing them, the appellant ran away from there. Thereafter, the prosecutrix was taken to the hospital and the complaint was lodged with City B Division Police Station Bhuj. Then FIR was registered. Statement of witnesses were recorded. Place of panchnama was drawn. Yadi was sent for recording the dying declaration to the Executive Magistrate, accordingly the same was recorded. Caste certificate was also tagged with the investigation papers. Then chargesheet was filed before the Court of Chief Judicial Magistrate, Bhuj and that was committed to the Court of Sessions, Bhuj-Kachchh and then charge was framed against the appellant-accused. <p class="judgspara"></p> <p></p> <p class="judgspara"></p> <p class="judgspara"></p>

(3.) Heard learned counsel Mr. N.L. Ramani for the appellant - accused. Mr. Ramani has contended that in the present case, the learned trial Court has acquitted the accused for the offence punishable under Sections 504 of the Indian Penal Code, 135 of the Gujarat Police Act and under Sections 3.2 5, 3.1(1) and 3.1(10) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities), Act 1989. He further submitted that it was the case of the complainant that the present appellant entered the bathroom from the roof and threatened with knife and made her forcefully to consume phenyl. He further submitted that the said issue is not considered by the trial Court. No question can be arises to consider that due to the force made by the present appellant to the victim to consume phenyl and in the result the accused was acquitted by the trial Court. This appeal is required to be considered in favour of the present appellant - accused. Mr. Ramani submitted that evidence of the victim herself is not proved. The appellant - accused made probable defence to the Court that there was a issue of the marriage of the present appellant and as per appellant's community, he cannot move outside after the engagement has taken place. The trial Court has not considered the said issue and convicted the appellant - accused. He has further argued that so far as other evidence is concerned, that cannot be considered as a evidence in support of the case of the prosecution. He further argued that only statement made before the Executive Magistrate in the form of dying declaration, that can be also considered at length. In short, he has submitted that the trial Court has committed grave and serious error in convicting the appellant accused and the appellant - accused deserves to be acquitted.