Gujarat High Court Case Information System
Print
CR.A/910/1997 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 910 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JESHING
@ HANUMAN HARKHABHAI KOLI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
THROUGH
JAIL for Appellant(s)
: 1,MS NITA C BANKER for Appellant(s) : 1,
PUBLIC PROSECUTOR for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 09/07/2008
ORAL
JUDGMENT
1. The
present appellant has preferred this appeal against the judgment and
order of conviction and sentence dated 4-9-1997 passed by the learned
Addl.Sessions Judge, Morbi in Sessions Case no.50 of 1996 whereby
the present appellant came to be convicted for the offence punishable
under Section 376 of the Indian Penal Code and sentenced to suffer
R.I. for seven years and fine of Rs.10,000,/- in default, further
R.I. for two years. He was also convicted for the offence punishable
under Section 3(I) (II) of the Prevention of Atrocities Act and
sentenced to suffer R.I. for three years and fine of Rs.1,000/-, in
default, further R.I. for on year.
2. The
prosecution case in brief is as under:
2.1 The incident in question took place on 25th July, 1996
in Morbi near Vegetable Mill. It is alleged by the prosecution that
on the said day at about 12.00 noon the victim i.e. daughter of the
complainant went towards the bank of the river for collecting cow
dung and while she was collecting cow dung the accused came there and
told her that there is cow dung at the place where he is tying the
cows and when she resisted, the accused caught-hold of her and took
her to a room behind the vegetable mill, bolted the doors of the room
from inside and with the use of force had sexual intercourse with the
victim a minor girl who was only eleven years old at the time of the
incident. The complaint came to be lodged by one Khodabhai- the
father of the victim before P.I. Morbi City, on the basis of which
offence was registered, investigation was carried out and
charge-sheet was filed against the appellant-accused for the offence
punishable under Section 376 of the Indian Penal Code as also under
Section 3(I) (II) of the Prevention of Atrocities Act. The offence
was registered as CR no.171 of 1996 and then numbered as Sessions
Case no.50 of 1996. The learned Additional Sessions Judge framed
charge Exh.1 under Section 228 of the Criminal Procedure Code for the
above referred offences. The accused pleaded not guilty to the
charges levelled against him and claimed to be tried.
3. To prove its case against the accused, the prosecution has
examined the following witnesses.
PW 1 Kodabhai Amarsingbhai Harijan at Exh.5.
PW 2 Minor victim at Exh.7.
PW 3 Amrutben Kodabhai at Exh.8.
PW 4 Abdul Kasambhai (Panch) at Exh.9.
PW 5 Kasam Vaklibhai at Exh.11.
PW 6 Ashok Takatsing (Panch) at Exh.12.
PW 7 Prakash Hiralal (Panch) at Exh.14.
PW 8 Dr. Pragjibhai Jethabhai at Exh.16.
PW 9 Dr.Narendrasing Natubha Jhala at Exh.20.
PW10 Mr. A.N.Siddique, P.I. At Exh.27.
PW 11 Dipak Shankerlal, DYSP at Exh.28.
4. The prosecution has also produced the following documentary
evidence:
Original complaint at Exh.6.
Medical certificate issued by Dr.Pragjibhai Jethabhai at Exh.18.
Case papers dt.27-7-1996 with regard to physical examination of the
victim with history narrated by victim at Exh.23
Birth Certificate of minor victim at Exh.38.
5. After recording the evidence of prosecution witnesses further
statement of the accused under Section 313 of the Criminal Procedure
Code was recorded in which his case was that a false complaint is
filed as a quarrel had taken place between him and the complainant
with regard to cutting of trees. The accused denied to examine any
witness and also denied to give evidence on oath.
6. After hearing the learned APP as well as the Advocate for the
accused, the learned Additional Sessions Judge after taking into
consideration the evidence on record convicted the present
appellant-accused and passed the judgment and order of conviction and
sentence as stated in para-1 of this judgment. Hence, the present
appeal.
7. Heard learned Advocate Ms. Nita Banker for the appellant and
learned APP Mr. U.R.Bhatt for the respondent.
8. Ms. Nita Banker learned Advocate for the appellant has taken me
through the entire evidence on record. The birth certificate of the
victim is produced before the trial Court at Exh.38 and it is proved
beyond reasonable doubt that at the time of the incident the victim
was 10 years and six months old and this fact is not challenged by
the accused. It is the submission of learned Advocate Ms. Nita that
as per the medical evidence penetration had not taken place and so
there is a possibility of false implication by means of a false
complaint. According to the learned Advocate, the learned trial Judge
has not taken this fact into consideration and hence the conviction
based on a false complaint cannot be sustained, and therefore, the
accused deserves to be acquitted. As per the deposition of Dr. Jhala
and as per the medical certificate it is clear that there was
swelling on the private part of the victim. It is also specifically
stated by Mr. Jhala on oath that if any person tries for a long time
for sexual intercourse with a minor victim by lying over her if the
passage into the vagina is very narrow, it is possible that there may
not be penetration and hymen cannot be torn. The minor victim has
specifically narrated on oath the manner in which the incident took
place which is corroborated by the medical evidence. It is the
evidence of the victim that is important I have gone through her
evidence and her version appears to be quite natural and in this case
the evidence of the victim is corroborated by the medical evidence on
record. The victim has specifically stated in her evidence that the
accused carried her to a room, gagged her, undressed himself and lay
over her for a long time and forcibly did the act of sexual
intercouse with her. The theory of false complaint having been filed
is not acceptable as no person would file a false complaint at the
cost of the reputation of his minor daughter owing to some personal
enmity. Looking to the Section itself it is abundantly clear that for
an offence of rape mere attempt to penetrate is sufficient and
conviction can be based on the same if proved beyond reasonable
doubt. In the instant case, it is proved through the medical
certificate that there was swelling on the private part of the victim
, and therefore, it can safely be concluded that there was an attempt
to penetrate which would constitute an offence of rape.
9. Having regard to the facts and circumstances of the present case,
the serious nature of the offence and the manner in which it has been
committed,I am constrained to hold that offence of rape is
committed by the appellant-accused and the learned trial Judge has
rightly passed the judgment and order of conviction and sentence
against the appellant accused. I see no reason to come to a different
conclusion. I, therefore, do not find any compelling circumstances
warranting my interference in the conviction and sentence of the
appellant.
10. In the result, the appeal fails and is dismissed.
(M.D.Shah,J.)
lee.
Top