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2019 DIGILAW 776 (GUJ)

Rakeshbhai Kantilal Vasava v. State Of Gujarat

2019-08-19

R.P.DHOLARIA

body2019
JUDGMENT : 1. The present appeal has been filed by the appellant-original accused no.1 under Section 374 of the Criminal Procedure Code, 1973, against the judgment and order dated 05.08.2019 passed by learned Additional Sessions Judge, Narmada at Rajpipla in Sessions Case No.17 of 2018, whereby the appellant-accused was convicted for the offence under Section 376 read with Section 511 of the Indian Penal Code (herein after referred to as IPC for short). By the impugned judgment, under Section 376 read with Section 511 of the IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of three years and three months and ordered to pay Rs.5,000/- fine and in default of payment of fine, rigorous imprisonment for a period of three months was imposed. 2. The case of the prosecution in short is that on 08.04.2018, when the victim was passing through the field for returning home, the appellant along with other accused had asked her to seat on bike and then dropped her. Thereafter, the appellant tried to make physical relation with the victim in the farm of Gulabhai Virjibhai and on shouting, the appellant and the accused no.2 who was standing nearby ran away, after which, a complaint was lodged with the police. 2.1 Investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable, the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2 After filing of closing purshis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him. 2.3 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment, convicted the appellant- original accused no.1. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 05.08.2019 passed by learned Additional Sessions Judge, Narmada at Rajpipla in Sessions Case No.17 of 2018, the appellant-accused has preferred the present appeal before this Court. 3. Learned advocate Mr. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 05.08.2019 passed by learned Additional Sessions Judge, Narmada at Rajpipla in Sessions Case No.17 of 2018, the appellant-accused has preferred the present appeal before this Court. 3. Learned advocate Mr. Apurva Kapadia for the appellant urged that present appeal may be heard at admission stage and he has taken this Court as well as learned APP to the evidence of material witnesses. As learned advocate Mr. Kapadia had previously furnished the evidence of material witnesses to learned APP as well as to this Court, present appeal is taken up for final hearing at admission stage. 4. Learned advocate Mr. Kapadia for the appellant-original accused no.1 pointed out that as per the prosecution version, the allegations levelled against the present appellant is only to the extent that he had attempted to commit rape on the victim and that fact has not been supported by any corroborative piece of evidence in the nature of medical evidence and even the complaint was also lodged belatedly after a period of about 3 days and except the bare words of the prosecutrix, nothing is available on record. He further submitted that the appellantoriginal accused no.1 has already undergone the sentence for about 1 year and 4 months as an under-trial-prisoner. In view of aforesaid nature of evidence, if the case of the appellant may be considered for reduction of sentence, he would not claim for clean acquittal. 5. On the other hand, learned APP Ms. Hansa Punani has supported the judgment of learned trial court and pointed out that though there may not be any corroborative piece of evidence, but in view of ratio laid down in celebrated decision of the Hon'ble Supreme Court in AIR 1983 SC 753 rendered in case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, bare words of prosecutrix is sufficient and the learned trial court has rightly hold the appellant-original accused no.1 guilty and rightly punished him and therefore, this Court may not reduce the sentence of the appellant-accused as such. 6. Heard Mr. Apurva Kapadia, learned advocate for the appellant and Ms. Hansa Punani, learned APP for the respondent-State. This Court has gone through the evidence of material witnesses as well as impugned judgment. 7. 6. Heard Mr. Apurva Kapadia, learned advocate for the appellant and Ms. Hansa Punani, learned APP for the respondent-State. This Court has gone through the evidence of material witnesses as well as impugned judgment. 7. PW.3-Champakbhai Gebubhai Vasava-father of the prosecutrix deposed the entire scenario as apprised by one Kishanbhai Bahadurbhai who had not been examined as prosecution witness. Therefore, he had not witnessed the incident in question. 8. Similarly, PW.4-Navneetaben Kanjibhai Vasava-sister of the prosecutrix deposed as per the incident alleged to have been narrated by the prosecutrix. Therefore, she had not witnessed the incident in question. 9. PW.5-the prosecutrix herself deposed that she had studied up to Standard-12 and she was aged about 20 years. On 08.04.2018, while she was returning to her home from agricultural field, at that time, the accused and co-accused asked her to seat on bike and she was alighted nearby her house and the present appellant undertook some talk with her and thereafter, attempted to rape her, but as she protested, due to which, the appellant ran away from the place of incident. 10. Though the prosecutrix came to be challenged about her version in the cross-examination, but nothing worth has come out. 11. PW.8-Dr. Vergis Suvera-Medical Officer was serving at Dediyapada Government Hospital and the prosecutrix was brought before him along with her mother. In the history, the prosecutrix told that she received injury due to fall, but no injury was found over her person and she had not taken any treatment. In the cross-examination, learned Doctor admitted that the prosecutrix has not stated that the appellant-accused had either tried to outrage her modesty or tried to commit rape over her. He also stated that no injury was found over her person. 12. This Court has minutely gone through the aforesaid evidence on record. On the overall evaluation of evidence on record and keeping in mind the fact that the prosecutrix had studied up to 12th Standard and she was aged about 20 years and no injury was found over her person, neither any evidence in the nature of torn clothes which she worn at the time of incident were came to be brought on record, nor any corroborative piece of evidence was available before the Doctor before whom she was produced for physical examination. In that view of the matter, except her bare words, nothing is available on record so as to link the present appellant-accused with the crime in question. Further, the appellant-accused has already undergone sentence for about 1 year and 4 months. In this circumstance, since nothing is conclusively emerging out as regards to commission of offence and the complaint came to be lodged belatedly after about 3 days, in absence of any sort of medical evidence, this Court in these peculiar facts and circumstances of the case, deems it appropriate to reduce the sentence to the extent of sentence he had already undergone. 13. For the reasons recorded above, present Criminal Appeal succeeds in part. The judgment and order of conviction dated 05.08.2019 passed by learned Additional Sessions Judge, Narmada at Rajpipla in Sessions Case No.17 of 2018 while maintaining conviction under Section-376 read with Section 511 of the IPC, the sentenced of 3 years and 3 months imposed upon the appellant-original accused no.1 is reduced to the extent of sentence already undergone. The appellant shall be released forthwith from jail, if he is no longer required in connection with any other offence. R & P be sent back to the learned trial court, forthwith. 14. In view of disposal of main appeal being Criminal Appeal No.1617 of 2019, Criminal Misc. Application No.1 of 2019 would not survive and stands disposed of accordingly. Appeal partly allowed.