1. As per Jail Report dated 18th December, 2007, the appellant No.2- Vantiyabhai alias Vateshbhai Hupabhai Vasava has already undergone the sentence and hence, the present appeal is heard and decided qua appellant No.1 only.
2. The present appeal is directed against the judgment and order of conviction and sentence dated 06th August, 2002 passed by the learned Additional Sessions Judge, Vyara, Surat, in Sessions Case No.77 of 2000, whereby learned Additional Sessions Judge has held the appellant No.1-original accused guilty for the offence punishable under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of seven years and also imposed fine of Rs.500/-, and in default of payment of fine, sentenced to undergo simple imprisonment for a further period of three months. The appellant No.1 is also sentenced under Section 342 of the Indian Penal Code and ordered to undergo rigorous imprisonment for a period of six months and fine of Rs.100/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of 15 days. However, clarified that substantive sentences shall run concurrently.
3. The brief facts of the prosecution case is that on 01st August, 2000 at about 17.00 hours, the appellant No.1 called the prosecutrix – Laxmiben Gangaram by saying that she is required to attain some work at floor mill. It is further the case of the prosecution that the appellant No.1 caught hold the prosecutrix and threw her in the room adjoining to the floor mill. Thereafter the room was locked from outside. It is also the case of the prosecution that at that time the accused No.2 was present in the room. He took out the clothes of the prosecutrix and committed rape on the prosecutrix. It is also the case of the prosecution that both the accused were knowing that the prosecutrix was minor at the time of incident and they were threatened the prosecutrix as well as her mother and compelled them to keep quite. It is also the case of the prosecution that when the prosecutrix tried to run away, the appellant No.2 slept the prosecutrix. Therefore, complaint to the said effect against the appellants for the offences under Sections 376, 654, 342, 323, 506(2) read with Section 114 of the Indian Penal Code came to be filed.
4. Thereafter necessary investigation was carried out by the Police; statements of the complainant and other witnesses were recorded; panchnama of seen of offence was drawn in presence of panchas and clothes wear by the prosecutrix were seized in presence of panchas. Thereafter on 05th August, 2000 the appellants came to be arrested and muddamal was forwarded to F.S.L. for further examination. Thereafter, on completion of investigation, as sufficient evidence was found against the appellants, charge-sheet was submitted to the learned Judicial Magistrate First Class, Vyara on 11th October, 2000.
5. Thereafter, charge came to be framed at Exhibit 5 against the appellants and read over to the appellants. Thereafter statements of the accused are recorded vide Exhibit 6 and 7 whereby the appellants pleaded not guilty to the charge and claimed to be tried.
6. Thereafter, to prove the case of the prosecution, prosecution has examined in all 11 witnesses and also produced documentary evidence in support of its case. The appellants have denied the case of the prosecution; however, no oral or written evidence produced by the appellants-accused.
7. Thereafter, after conclusion of trial, the learned Additional Sessions Judge has convicted the appellants by his judgment and order dated 06th August, 2002 as mentioned above.
8. Being aggrieved by and dissatisfied with the aforesaid Judgment and order of conviction and sentence, the appellants have preferred the present appeal.
9. Heard Mr.J.V. Bhairavia, learned counsel for the appellants and Mr.H.L. Jani, learned Additional Public Prosecutor for respondent-State.
10. Mr.Bhairavia has contended that appellant No.1 has not committed any offence as alleged against him. He has read the oral evidence of the witnesses and contended that role of the present appellant No.1 is not proved beyond reasonable doubt so far as abetment is concerned. He has also contended that there are contradiction between the evidence of the prosecutrix and her mother. He has further contended that the medical evidence is not supported the case of the prosecution. He has further contended that though the learned Judge has observed in his order that there are major contradiction in the evidence of the prosecutrix, the learned Judge has believed the evidence of the prosecutrix as trustworthy. He has contended that sufficient doubt is created from the oral evidence of the prosecutrix and other witnesses.
Mr.Bhairavia has contended that he is not arguing the matter on merits, but simply arguing the matter for the quantum purpose only. He, therefore, contended that looking to the overall facts and circumstances of the case and looking to the evidence produced on record, some lenient view may be taken in the matter and the appellant No.1 may be released considering the period which the appellant No.1 has already undergone.
11. Heard Mr.H.L. Jani, learned Additional Public Prosecutor. He has read the charge as well as oral evidence of witnesses and contended that the learned Judge has rightly convicted the accused for the offence alleged against them. He has contended that the judgment and order of conviction is absolutely just, proper and correct and is not required to be interfered with. He has further contended that the learned Judge has after appreciating the evidence produced before him, passed absolutely just and proper order. He, therefore, contended that appeal is required to be dismissed.
12. Heard the learned counsel for the parties. I have also gone through the papers produced before me as well as the judgment and order of the Court below.
13. It appears from the papers that there are some contradictions between the evidence of prosecutrix and her mother and other witnesses, but it is not fatal to the case of the prosecution. I have also perused provisions of Section 354 of 342 of the Indian Penal Code. It seems that the learned Judge has imposed harsh conviction upon the appellant No.1. The appellant No.2, who is main accused, has already undergone the sentence and has been released from jail. I have also perused submission of Mr.Bhairavia, learned counsel for the appellants, that appellant No.1 is a poor person and some lenient view is required to be taken in the matter. Looking to the conviction imposed upon the appellant No.1 and the the period, which the appellant No.1 has undergone, I am of the opinion that if lenient view be taken in the matter, it will meet with ends of justice.
14. In view of above, present appeal is partly allowed. The judgment and order of conviction dated 06th August, 2001 passed by the learned Additional Sessions Judge, Vyara in Sessions Case No.77 of 2000, is hereby confirmed; however, the judgment and order of sentence dated 06th August, 2001 passed by the learned Additional Sessions Judge, Vyara in Sessions Case No.77 of 2000 is concerned, the same is hereby reduce and modified to the extent that now the appellant shall have to undergo rigorous imprisonment for a period of twelve months instead of eighteen months. The rest of the judgment and order dated 06th August, 2002 shall remain unaltered. The appellant is on bail. This bail bond shall stand cancelled. The appellant-accused is, therefore, directed to surrender himself before the Jail Authority within a period of four weeks from today, failing which the trial Court concerned is directed to issue Non-bailable warrant against the appellant-accused to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z. K. Saiyed, J) Anup