DIPAKBHAI VALJIBHAI PARGHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE two appears arise out of a judgment and order rendered by Fast Tract Court, Gondal, on 19th March, 2005, in Sessions Case No. 73 of 2003, convicting both the appellants for the offences punishable under Sections 376 read with Section 114, 452 and 506 (2) of the Indian Penal Code (IPC") and Section 135 of the Bombay Police Act. 1. 1 Appellant, Dipakbhai Valjibhai Parghi, original accused No. 1, was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 376 read with Section 114 of the IPC. For the offence punishable under Section 452 of the IPC, he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for six months. He was further ordered to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 506 (2) of the IPC and, lastly, he was ordered to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000-, in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 135 of the Bombay Police Act. 1. 2 So far as accused No. 2, Aminbhai Alibhai Sirman, is concerned, he was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 3000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 376 read with Section 114 of the IPC. For the offence punishable under Section 452 of the IPC, he was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for six months. For the offence punishable under Section 506 (2) of the IPC, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for six months and, lastly, for the offence punishable under Section 135 of the Bombay Police Act, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for six months. 1. 3 All the sentences were ordered to run concurrently and both the accused were given benefit of set off. 1. 4 Both the convicts were directed to pay an amount of Rs. 25,000/- each, totalling to Rs. 50,000/-, as compensation to the prosecutrix under Section 357 of the Code of Criminal Procedure.

(2.) ORIGINAL accused No. 1 has preferred Criminal Appeal No. 914 of 2005 and original accused No. 2 has preferred Criminal Appeal No. 1344 of 2006. For the sake of convenience, these two appellants are addressed to as accused Nos. 1 and 2 in this judgment.

(3.) AS per the prosecution case, the incident occurred on 02. 07. 2003 at about 11. 00 P. M. in the Harijanvas, near Niranga Dyeing House, at Navagadh, in the house of Rupaben, wife of Rasikbhai Patel. At the time of the incident, the prosecutrix was alone in the house. On hearing the sound of knocking of door, she opened the door of the house and found two strangers at the doorstep inquiring about her husband. When she asked them about as to why they were inquiring about him, they told her that want to beat him. She informed that her husband was not available and then she tried to go into the house and close the door. However, accused No. 2 pulled her and did not permit her to close the door and then they took her outside the house and made her to take bath in the rain water. The two accused persons also took bath in the rain water and then the lights went off suddenly. Taking advantage of the darkness, the prosecutrix went into the house to find that both the accused persons were inside the house. Thereupon accused No. 1 asked accused No. 2 to keep a watch while remaining outside the house and then closed the door of the house from inside, threw the prosecutrix on the cot and asked her to remove her clothes and then raped her. After the rape, the prosecutrix was forced to wash her clothes and take bath. The room was swept with the help of her Chunari. Thereafter both the accused went away. It is the case of the prosecutrix that the two persons were unknown to her, but she learnt their names as they were addressing each other by their respective names during the episode. The prosecutrix, on the next day, lodged an F. I. R. with Jetpur City Police Station, on the basis of which offence was registered and investigated. The police sent the prosecutrix to doctor for medical examination, where she gave a detailed history on the lines of the F. I. R. The police collected all available evidence and, having found sufficient material to prosecute the accused persons, filed charge sheet in the Court of Judicial Magistrate, First Class, at Jetpur. Since the offence was triable exclusively by a Court of Sessions, learned JMFC, Jetpur, committed the case to the Court of Sessions and Sessions Case No. 73 of 2003 came to be registered. 3. 1 Charge was framed against the accused persons at Exhibit 1 for the offences punishable under Sections 452, 376 read with Section 114 and 506 of the IPC and Section 135 of the Bombay Police Act. Both the accused persons pleaded not guilty to the charge and claimed to be tried. 3. 2 The Trial Court, upon considering the evidence led by the prosecution, found that the prosecution was successful in establishing the charges and, therefore, recorded conviction of the accused persons appellants, as stated hereinabove. It is against the said judgment dated 19th March, 2005 that the present appeals are preferred by both the convicts.