(HONOURABLE MR.JUSTICE J.C.UPADHYAYA)

The appellant, who was original accused in Sessions Case No. 117 of 2004, by preferring this appeal challenged the legality and validity of his conviction, recorded by the Presiding Officer, Fast Track Court No. 2, Ahmedabad [Rural] on 27/5/2005 for the commission of offences punishable under sections 376 and 506 [2] of the Indian Penal Code [IPC]. The Ld. Trial Judge awarded sentence of rigorous imprisonment [RI] for 10 years and fine of Rs.5,000/-, in default of payment of fine, RI for 3 months for the offence punishable under section376 of the IPC and RI for one year and fine of Rs.1,000/- and in default of payment of fine, RI for one month for the offence punishable under section 506 [2] of the IPC. Substantive sentences of imprisonment were ordered to run concurrently and the benefit of set off was given.

2. The prosecution case, in nutshell, is that the appellant happens to be father-in-law of prosecutrix Bhavna alias Bhavika. The prosecutrix married with Mahendra Dhulabhai, son of the appellant on 17/2/2003 and after her marriage, she went to reside with her husband at her matrimonial home situated at village Ognaj of District Ahmedabad. The family of her husband, at the time of the incident, consisted of her father-in-law [appellant], her mother-in-law Hiraben and minor girl Anchal, aged about 3 years, who was daughter of her husband's elder brother.

2.1. The incident occurred at about 11.00 a m on 10/3/2004. At the time of the incident, her husband had left the house to attend his job and her mother-in-law Hiraben had gone to Gandhinagar where her husband's elder brother was residing. Thus, at the time of the incident, the prosecutrix, her father-in-law [the appellant] and Anchal, aged about 3 years, were only there in the house. The prosecutrix was doing routinal household work in the ground floor portion of the house. It is alleged that at that time, the appellant shut the main door of the house from inside and came near the prosecutrix and he caught hold of her hands and forcibly took her to a room which was situated in the upstairs of the house. The appellant then closed the prosecutrix into the room by closing the door of the room from outside and the appellant returned back in the room with Anchal. Anchal was made to sit on a bicycle and the appellant gave her ice-cream and threatened the prosecutrix that if she will speak anything or will shout, she would be done to death. Then the prosecutrix was undressed by the appellant and was compelled to lie-down on a cot and the prosecutrix was raped without her will or consent by the appellant. It is alleged that Anchal opened a window of the room and thereupon the appellant carrying his clothes in his hands, left the room and went to the ground floor of the house. The prosecutrix thereafter put on her clothes and went to the ground floor. The appellant then told the prosecutrix to accompany Anchal and to leave Anchal to the Nursery School. The prosecutrix then along with Anchal, went to the Nursery School, left Anchal there and instead of returning back to her matrimonial home, she went to her mother's house which was situated in the City of Ahmedabad, but the house was locked. She, therefore, went to the High Court as her mother was serving in the canteen of the High Court, but in the compound of the High Court, she saw scooter of her husband and, therefore, she did not go inside the canteen to meet her mother, but she returned back to her mother's house and waited outside the house till her mother returned from her service. It is alleged that after Kailasben Bhikhabhai, mother of the prosecutrix returned to her home, the prosecutrix narrated the incident about the rape to her mother. On the next day, her mother informed about the incident to her aunt and other relatives and they went to Gandhinagar where the elder brother of the husband of the prosecutrix was residing and informed him about the mis-deed committed by his