RAJUBHAI JIVABHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT appeal is directed against the judgment and order dated 3 -2 -2003 passed by the learned Additional Sessions and Fast Track Judge, Modasa in Sessions Case No. 19 of 2002 recording conviction of the accused for offence under Sections 376 and 323 of Indian Penal Code ('I.P.C.') and imposing sentence of life imprisonment for the offence under Section 376 and fine of Rs. 5000/ - and also recording conviction for offence under Section 376 and imposing R.I. for 3 months and fine of Rs. 500/ -. The sentences were also ordered to run concurrently.

(2.) THE facts of the case briefly summarized are as follows:

(3.) LEARNED Advocate Mr. Pawar for the accused also referred to the deposition of P.W. 2 - victim girl - Sarujben Devusinh at Exh. 9, who is a minor, and referring to her deposition, it was submitted that though she has stated in her deposition about the incident and the alleged offence while giving the history before the doctor regarding the injury, she has stated that as she fell down while running and she has received the said injury. Therefore, learned Advocate Mr. Pawar for the accused had submitted that the history given by the victim herself to the doctor narrating about the injury would be natural and it is inconsistent with her deposition. Her deposition may not be accepted, particularly when she is a minor child who could be tutored. Further, learned Advocate for the accused has also submitted that the evidence of P.W. 3 -Induben Chandusinh (aunt) at Exh. 10, who is said to have been eye -witness, could not be believed or accepted as she has been conveyed as to what had transpired to the victim, and therefore, she has not seen the incident, therefore, the evidence of the prosecution witnesses like P.W. 3 -Induben Chandusinh (aunt) at Exh. 10, P.W. 1 -Jitendrasinh Ramsinh at Exh. 7 and P.W. 4 -Devusinh Ramsinh (father) at Exh. 11, is not reliable.