MANJIBHAI RAVJIBHAI BARAIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this appeal, filed under section 374 of the Criminal Procedure Code, 1973, the appellant - Original Accused No.1 has challenged the judgment and order of Presiding Officer, Fast Track Court No.3, Bhavnagar (for short the "trial court") dated 06.02.2007 rendered in Session Case No.108 of 2006, whereby the learned trial Judge has convicted the accused under Sections 363, 366 and 376 of the Indian Penal Code(herein in referred to as "IPC").

(2.) A complaint came to be lodged by PW 3 Bibibanu Nasimbanu before Sihor Police Station being I.C.R.No.94/2006, inter alia, stating that on 25.04.2006, her three children were at home and were playing. At about 05.00 O'Clock, her daughter, who is deaf and dumb had also gone to play on the plot of Vijaybhai Vaniya which is adjacent to the premises where she is staying with her family. She has stated that when she did not find her victim - daughter, she searched for her and climbed to a wall adjacent to the plot and at that time, she saw accused Manjibhai Ravjibhai Baraiya with her victim daughter who was in his lap. On seeing her, the accused got frightened and made the victim stand from her lap, at that point of time, his pant was lying below his waist. She has stated that when she shouted, her neighbours Bhaktiben, Rampyare, Rekhaben Fulubhai and Ranjanben Durgaprasad reached on the spot and the accused on seeing them ran away from the place. She has stated that when she went to the victim, she was crying and as the victim was deaf and dumb since her childhood, she could not express anything. Her clothes were having blood marks at the back side. She has stated that the victim through her gesture pointed out that she was having pain in her private parts. Therefore, she along with her neighbor Rekhaben had taken the victim to Sihor Government Hospital for treatment and the complainant narrated the incident before the Doctor, who in turn informed the Police. Thereafter, the police had taken her complaint. She has mentioned that the accused had lured her to sit on his lap and had committed rape.

(3.) Upon registering the F.I.R being C.R No.I-? 94/2006 with Sihor Police Station for the offences under sections 363, 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC"), the Investigating Officer has carried out the investigation and after following the due procedure of law, a charge-?sheet came to be filed before the Judicial Magistrate, First Class, Sihor. Since the case was exclusively triable by the court of Sessions, the same was committed to the Sessions Court. A charge was framed against the accused and the plea of the accused was recorded under the provision of section 313 of the Code. The accused pleaded not guilty to the charges and claimed to be tried.