ALPESHKUMAR @ PAPPU SHAILASBHAI DUND Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant - accused has chosen to prefer this appeal under Section 374 of the Code of Criminal Procedure against the judgement and order dated 04.09.2014 passed by the 3rd (Ad-hoc) Additional Sessions Judge, Sabarkantha at Himmatnagar, Camp at Idar in Sessions Case No. 128 of 2011 for the offences punishable under Sections 376 & 506(2) of the Indian Penal Code whereby the Court convicted the present appellant for the offence punishable under Section 376 of the Indian Penal Code by imposing rigorous imprisonment of ten years with fine of Rs.5,000/- and in default of fine, to suffer further rigorous imprisonment for three months. The Court also for the offence punishable under Section 506(2) of the Indian Penal Code convicted the appellant for a period of one year and fine of Rs.1,000/- and in default of the payment of fine ordered to suffer rigorous imprisonment for one month. Aggrieved appellant is before this Court.

(2.) The case of the prosecution as unfolded before this Court is that the complainant - prosecutrix - daughter of Himmatbhai Damor, resident of Nana Dodisara, Taluka Bhiloda, Dist. Sabarkantha was studying in the 11th standard of Smt. Hansaben Pravinbhai Thaker High School situated near Shamlaji Ashram. On 26.08.2011, she went to the school in the morning and after the school hours while returning she had come in the bus and thereafter in a jeep. She alighted at Raipur stand. The driver of the said jeep - present appellant - Alpesh @ Pappu Shailasbhai Dund had also one more passenger. She alighted near the primary school at Dodisara and had headed towards her residence. It was a lonely road of walkers when Alpesh came from behind and caught her which resulted into her losing the balance and her books had fallen down. He dragged her into the bushes and he committed rape although she resisted much. After the commission of rape, he threatened her not to let this be known to anyone and he left towards his residence. The complainant was sitting on the footpath when her younger brother Sarjan who too was studying in the same school had followed her. He picked up her books and brought her home. She confided the details into her parents and a cousin of hers. That is how the complaint came to be given which was registered as I-C.R. No. 60 of 2011 at Bhiloda Police Station for the offences punishable under Sections 376 and 506(2) of the Indian Penal Code.

(3.) This Court has heard learned advocate Mr. P.V. Patadiya in legal aid who has urged that the girl is said to be 15 years, 5 months and 14 days as her date of birth is said to be 12.03.1996. However, there is no valid and cogent proof with regard to her birth date. It is the Talati-cum-Mantri P.W. 19 who has been brought as a witness to prove her age and the birth and death certificate of hers (Ex. 33) has been relied upon although there is nothing to indicate that this is the correct birth certificate. It is further argued by him that there are major contradictions in the deposition of the prosecutrix. The exact time and date of the incident is also missing. The brother of hers who is studying in the very school surprisingly had not accompanied her. It is also quite unnatural to note that he had followed her after a while. There appears to be a fair chance of the brother being tutored by the prosecution. It is also further urged that the medical evidence also does not much corroborate with the version of the prosecutrix and therefore also, it is not a case where a young boy has to undergo incarceration for such a long time.