1. The present appellants has preferred this Appeal under Section 374 of the Code of Criminal Procedure against the judgment and order of conviction and sentence dated 29.2.2008 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Ahmedabad in Sessions Case No.15 of 2007, whereby the learned Sessions Judge has convicted and sentenced the appellant to undergo R.I. for five years with a fine of Rs.2,000/-, in default, six months more S.I. for the offence punishable under Section 363 of the Indian Penal Code. Learned Sessions Judge was further pleased to convict and sentence the appellant to undergo R.I. for five years with a fine of Rs.2000/-, in default, further S.I. of six months for the offence punishable under Section 366 of the Indian Penal Code. The appellant accused was further sentenced to undergo R.I. for 7 years and to pay a fine of Rs.5000/-, in default, further S.I. of one year for the offence punishable under Section 376 of the Indian Penal Code and also ordered to undergo R.I. for 7 years and to pay fine of Rs.5000/-, in default, further S.I. of one year for the offence punishable under Section 392 read with 114 of the Indian Penal Code.
The brief facts of the prosecution case is as under:
2. As per the case of the prosecution, the appellant accused took away the complainant Taniya Akbargulam Rasul Shaikh at Mumbai and committed rape on her against her will and consent. Thereafter, after committing rape, the complainant was threatened by the accused not to tell anything to anyone, otherwise he will kill her. Therefore, the complainant lodged complaint at Kagdapith Police Station against the appellant accused along with one another accused Saidkhan Alias Khanbhai Majidkhan Khan, residing at Mumbai.
3. The statements of the witnesses were recorded, panchnama was drawn and accused - appellant along with one another accused were arrested. There was sufficient evidence against the appellant, charge-sheet was filed before the learned Metropolitan Magistrate Court, Ahmedabad. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was numbered as Sessions Case No.15 of 2007.
4. Thereafter, the charge was framed against the appellant. The appellant - accused has pleaded not guilty and claimed to be tried.
5. To prove the case against the appellant, the prosecution has produced documentary evidence and also examined the 19 witnesses before the Sessions Court.
6. Thereafter, after examining the above referred witnesses, further statement of the appellant - accused under Section 313 of the Code of Criminal Procedure was recorded in which the appellant - accused has denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned Additional Sessions Judge, Fast Track Court No.3, Ahmedabad, in Sessions Case No.15 of 2007 vide order dated 29.2.2008 held the appellant - accused guilty to the charge levelled against him and sentenced him as stated above.
8. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge, the present appellant has preferred this appeal.
9. Learned advocate Mr. Barod, appearing on behalf of the appellant submitted that there were several contradictions between the documentary evidence produced by the prosecution and they were never proved, even though the learned Sessions Judge held the appellant- accused guilty for the offence alleged and convicted the appellant. Therefore, the order impugned is required to be quashed and set aside by allowing the appeal.
10. Learned advocate Mr.Borad has argued that the appellant was convicted on the basis of prosecutrix statement, but the prosecution has not been able to bring anything on record any event occurred immediately before the sexual intercourse with the prosecutrix. Even the offence under Section 376 of the Indian Penal Code is not properly and satisfactorily proved against the appellant before the learned trial Court. In fact, there was love affairs between the accused and prosecutrix and she willingly ran away with the accused person and also she had given consent for the sexual intercourse. Therefore, there was no case of any kidnapping and rape under Sections 363, 366 and 376 of the Indian Penal Code. The prosecutrix was not a minor at the time of incident. He further argued that according to medical jurisprudence, if there is a six organs of the prosecutrix are well developed then it cannot be said that the prosecutrix was a minor. The prosecution has also failed to prove the place of recovery and discovery panchnama and also incident place. Therefore, the judgment and order passed by the learned Sessions Judge is required to be quashed and set aside by allowing this appeal.
11. The learned APP Mr. H.L. Jani for the State strongly opposed the submissions made by the learned advocate for the appellant. It was contended by learned APP that the judgment and order of the Sessions Court is just and proper and as per the provisions of law; the Sessions Court has properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved the whole ingredients of the evidence against the present appellant. He further argued that the prosecutrix being a beggar and therefore, appellant had taken disadvantages of her position. He contended that from the medical evidence, the prosecution has proved the case beyond reasonable doubt. Both the prosecutrix were below 13 years and therefore, question of consent cannot arise. Therefore, the learned Sessions Judge has rightly considered the oral as well as documentary evidence and on the basis of that, he assigned the cogent reasons in convicting and sentencing the appellant. Therefore, judgment and order is required to be confirmed.
12. I have perused the records and considered the submissions made by both the sides. I have also perused the judgment and order passed by the learned Sessions Judge. I have perused panchnama, scene of offence. From the perusal of the oral evidence of the victim, it appears that present appellant was known to her and the accused was residing near her house. She also stated that the appellant along one another accused kidnapped from Sarangpur, Ahmedabad and took her at Surat and thereafter, she was taken at Bombay, where the appellant committed rape. Even from the evidence of medical expert, it is established that the prosecutrix was raped by the appellant. Even the learned Sessions Judge has rightly observed the age of the victim and, therefore, it is a purely rape case. The appellant made intercourse with the prosecutrix against her will and consent. It is also possible that the prosecutrix was a beggar and therefore, the appellant had taken disadvantage of her position as a beggar. Therefore, I am in total agreement with the findings assigned by the learned Sessions Judge, who has after considering all the documentary as well as oral evidence including medical expert, convicted and sentenced the appellant.
13. I have also perused the evidence of the prosecutrix and it is found that she is an illiterate lady and she has explained the incident in detail and the contents of the evidence are corroborating with the contents of complaint and therefore, the prosecution has proved its case beyond reasonable doubt against the appellant Hence, I am in total agreement with the reasons assigned by the learned trial Judge and therefore, I do not incline to interfere with the reasons assigned by the learned trial Judge in his judgment and order.
14. In view of the above observation, the Appeal is dismissed. The judgment and order passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Ahmedabad in Sessions Case No.15 of 2007 dated 29.2.2008 is hereby confirmed. R & P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED, J.) ynvyas Top