NATHABHAI SAVJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE Appeal is by the original accused of Sessions case no. 45 of 1996 decided by the learned Additional Sessions Judge, Panchmahals at godhra by the judgment and order of conviction and sentence dated 14th August, 1998 whereby the accused came to be convicted for the offence punishable under sections 376 and 506 (2) of the Indian Penal code. The learned trial Judge imposed life imprisonment and fine of Rs. 500/- for the offence punishable under section 376 of the Indian Penal code, in default punishment is for six months for the said offence. The accused is also imposed rigorous imprisonment for 3 years and fine of rs. 250/- for the offence punishable under section 506 (2) of the Indian penal Code. In default punishment for the said offence is for three months. It is ordered that the sentences shall run concurrently. The accused was charge-sheeted for the offence punishable under section 366 of the Indian Penal Code. However, there is no formal finding qua the offence, so it is to be considered that he has been acquitted or the said offence. We are informed that there is no appeal by the State against acquittal of the accused for the offence punishable under section 386 of the Indian Penal Code.

(2.) THE appellant (hereafter referred to as the 'accused') has preferred this Appeal through jail and the same has been admitted by this Court on 8th April, 1999. The learned counsel for the accused Ms. Sadhna Sagar has taken us through relevant record, more particularly, oral as well as documentary evidence led by prosecution in the background of the story unfolded by the complainant victim in the FIR lodged by her on 14th october, 1995 with Fatehpura police station. As Fatehpura police station found that the offence alleged by the complainant has been committed within territory of Santrampur police station, it was transferred for investigation to Santrampur police station. The Santrampur police station investigated the crime and ultimately found that the offences punishable under sections 366, 376 and 506 (2) of the Indian Penal Code have been committed and therefore, police charge-sheeted the accused accordingly. The learned Additional Sessions Judge, after recording the evidence and offering the accused an opportunity to explain indiscriminating circumstances emerging from evidence, under section 313 of the Code of criminal Procedure, reached to a conclusion that the accused is guilty of the charge of offence punishable under section 376 as well as offence punishable under section 506 (2) of the Indian Penal Code and sentenced him as mentioned hereinabove.

(3.) IT is submitted by learned advocate Ms. Sadhna Sagar that the finding recorded by the learned Trial Judge is erroneous and is in violation of the accepted principles of appreciation of evidence and therefore, the same deserves to be quashed and set aside. The learned trial Judge ought to have acquitted the accused observing that there is an element of consent by the victim complainant Lilaben as examined by the prosecution as star witness. It appears that the learned Trial judge has mainly concentrated, perhaps, on the age difference between victim and the accused and the fact that the victim had been to hospital for taking medicines as she was suffering from fever and the fact that she was kept under threat by the accused for all the period for which the victim remained in the company of the accused. But the learned trial Judge, according to Ms. Sadhana Sagar, ought to have considered the conduct of the victim and clear conflict in the evidence led by the prosecution to bring home the charge. The accused was facing trial of one case where one lady Shardaben had also lodged similar type of complaint, perhaps, had impressed the learned Trial Judge in linking the accused with the crime, because the case of similar nature qua one sharda has been referred to by the learned Trial Judge in the last-operative conclusion- part of the judgment under challenge. The status of the victim is of a married woman also has impressed the learned Trial judge if the reasons assigned by the learned Trial Judge are considered from all relevant perspectives. It is argued that the prosecution was supposed to establish the charge that the accused had intercoursed with the victim against her wish and/or consent. The statement of the accused recorded under section 313 of the Code of Criminal Procedure has been given improper and illogical weightage while appreciating evidence led by the prosecution because the accused had accepted that he had illicit relations (intercourse) with the victim when she was with him. This admission has been wrongly modulated by the learned Trial Judge. The say of Ms. Sagar, in short, say of Ms. Sagar is that there is no sufficient evidence as to commission of rape by the accused on victim lady, namely complainant Lilaben and the accused therefore, deserves acquittal. In the same way, there is no legal satisfactory evidence to show that the accused had ever committed offence punishable under section 506 (2) of the Indian Penal Code and therefore, he should also be acquitted from the said charge.