SHAILESHKUMAR NANJIBHAI SOLANKI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) 1. The appellants are respectively accused nos. 2, 3 and 5 in Sessions Case No. 109 of 2003 of Panchmahals District at Godhra, who were convicted by the Sessions Court at Godhra by judgment and order dated 25/7/2003. Appellants nos. 1 and 2 original accused nos. 2 and 3 were convicted for offences punishable under sections 453 and 114 and 363, 366 and 114 of the Indian Penal Code [ipc] and sections 376 (2) and 114 of the IPC and were sentenced to undergo simple imprisonment [si] for 2 years with fine of Rs. 1,000/-, SI for 3 years with fine of Rs. 1,000/- and rigorous imprisonment [ri] for 10 years and fine of Rs. 10,000/- respectively with appropriate provision for sentence in event of default in payment of fine. Appellants no. 3 original accused nos. 5 came to be convicted for offences punishable under sections 363, 366 and 114 of the IPC and sections 376 (2) and 114 of the IPC and was sentenced to undergo SI for 3 years with fine of Rs. 1,000/- and RI for 10 years and fine of Rs. 10,000/- respectively with appropriate provision for sentence in event of default in payment of fine. The sentences were ordered to run concurrently and all the accused were given benefit of set off.

(2.) THE prosecution case in brief is that the first informant Amrutaben, daughter of Lalabhai Galabhai Pagi was sleeping in her house-cum-shop on night falling between 15/1/2003 and 16/1/2003. When around 1. 30 hours the accused persons illegally entered the house and took her away by gaging her mouth. She was mounted on a bicycle and was carried to a house, where she was raped by the assailants. As per the prosecution, besides the appellants, two other persons were also in the group of assailants namely accused no. 1 Bhikhabhai Manabhai Vankar and accused no. 4 - Parvatbhai Gorajibhai Dindor, who came to be acquitted by the trial Court considering the evidence led by the prosecution. 2. 1. After gang rape the prosecutrix was permitted to go. She came back to her home crying and informed her father about the incident and then went to the police and lodged FIR. On the basis of the FIR, offence was registered and crime investigated. The police having found sufficient evidence, filed charge-sheet against the 5 accused persons in the Court of the Ld. Judicial Magistrate First Class, Santrampur. The Ld. Magistrate in turn committed the case to the Court of Sessions and Sessions Case No. 109 of 2003 came to be registered. 2. 2. Charges were framed against all 5 accused at exh. 11 and all of them pleaded not guilty to the charge and claimed to be tried. After considering the evidence led by the prosecution, the trial Court came to a conclusion that the prosecution was successful in proving the charges against accused nos. 2 and 3 for offences punishable under sections 453, 363, 366, 376 (2) read with section 114 of the IPC and that the prosecution was successful in establishing the charges for offences punishable under sections 363, 366, 376 (2) read with section 114 of the IPC against accused no. 5 and recorded their conviction and passed order of sentence as discussed hereinabove. The trial Court, however, recorded acquittal so far as accused nos. 1 and 4 were concerned and acquitted them of the charges. No appeal against the acquittal seems to have been preferred by the prosecution.

(3.) WE have heard learned advocate Ms. Farhana Mansuri for the appellants and Ld. APP Mr. Bhatt for the respondent - State. 3. 1. Ms. Mansuri submitted that the trial Court has committed an error in convicting the appellants on same set of evidence which was found to be sufficient to acquit accused nos. 1 and 4 and the Court has, therefore, committed grave error of facts and law. According to Ms. Mansuri, the evidence of prosecutrix is unbelievable. She says that she was physically lifted and mounted on a bicycle and taken to the place where the rape was committed and that she had raised shouts; but there is no evidence to show that somebody heard the shouts. Possibly she did not raise any shout and, therefore, nobody heard it. Witness, therefore, is not telling the truth and may not be believed. If the deposition of the prosecutrix is not believed, there is no other evidence to establish nexus between the crime and convict. The appeal, therefore, may be allowed. 3. 2. On the other hand, Ld. APP Mr. Bhatt submitted that the entire incident has occurred in one sequence. The evidence, therefore, is common and in the first flush it may appear that the Court has committed an error in giving two findings on same set of evidence. But if the evidence is examined, the prosecutrix implicates only the appellants and not the other accused. Besides, the evidence of prosecutrix, there is evidence of the doctor before whom the accused persons had given the history of they having raped the prosecutrix. This independent evidence of the doctor lends full credence to the evidence of the prosecutrix and vice-versa and, therefore, the conviction is well founded and the appeal may, therefore, be dismissed.