R.P. DHOLARIA, J.

[1] Criminal Appeal No.374 of 2009 has been preferred by the appellant – accused against his conviction and sentence and Criminal Appeal No.597 of 2009 has been preferred by the State for enhancement of sentence awarded to the accused.

[2] Both the above referred Criminal Appeals have arisen from the same judgment and order delivered by the learned 3rd Additional District & Sessions Judge, Surat on 12.02.2009 in Sessions Case No.55 of 2008.

[3] The accused was convicted for the offence punishable under Section 452 of the Indian Penal Code and was sentenced to undergo simple imprisonment of one year and to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment of three months. The accused was convicted for the offence punishable under Section 376 of the Indian Penal Code and was sentenced to undergo simple imprisonment of seven year and to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment of one year. The learned 3rd Additional District & Sessions Judge, Surat has ordered to run both the sentences concurrently.

[4] The facts in short giving rise to the present appeals are as under.

[4.1] According to the prosecution case, the complainant was residing at Room No.14, Rammuratni Chawl, Gurukrupa Society, Ishwarnagar, Gabheni Road, Sachin GIDC, Surat. It is the case of the prosecution that the accused by taking benefit of loneliness of victim in absence of complainant – Ramprakash and his wife Mayadevi, illegally entered in the house of the complainant and committed rape on his handicapped daughter, aged about 13 years. The complaint being C.R. No.I-230/2007 came to be registered before Sachin Police Station for the offences punishable under Sections 452 and 376 of the Indian Penal Code.

[5] Necessary investigation was carried out by PI, Sachin Police Station. Thereafter on conclusion of the investigation, Investigating Officer submitted the charge-sheet against the accused in the Court of learned 5th Additional, Civil Judge & Judicial Magistrate, First Class, Surat and as the case was exclusively triable by the Court of Sessions, the 5th Additional Civil Judge & Judicial Magistrate, First Class committed the case to the Court of Sessions which was numbered as Sessions Case No.55 of 2008.

[6] That the learned 3rd Additional District and Sessions Judge, Surat framed charges against the accused vide Ex.4 on 28th August, 2008. The accused pleaded not guilty and the prosecution tendered oral as well as documentary evidence.

[7] To prove the case against the present accused, the prosecution has examined following eleven witnesses.

P.W.1 Ramprakash Jaharilal, complainant Ex.8

P.W.2 Amarsinh Shripal Gupta, panch witness Ex.10

P.W.3 Gangaprasad Gorelal Gupta, panch witness Ex.12

P.W.4 Javaharlal Kholadi Shahu, panch witness Ex.13

P.W.5 Shyamsundar Hiramanrai, witness Ex.15

P.W.6 Ms. S, prosecutrix Ex.16

P.W.7 Dr.Gaurang Somabhai Solanki Ex.17

P.W.8 Dr.Gaurang Jagdishchandra Patel Ex.19

P.W.9 Karsanbhai Rambhai Bhuva, P.I. Ex.21

P.W.10 Dr.Rutuja Kandarp Desai Ex.23

P.W.11 Mahendrasinh Vajesinh Rathod, P.I. Ex.26

[8] In addition to the above oral evidence, the prosecution also tendered documentary evidence as under.

1 Complaint Ex.09

2 Arrest panchnama Ex.11

3 Panchnama of clothes of victim Ex.14

4 Medical Certificate of the accused Ex.18

5 Medical Certificate of the victim Ex.20

Medical Certificate of the victim Ex.25

6 Information letter Ex.27

7 Panchnama of scene of offence Ex.28

8 Preliminary report of F.S.L Ex.29

9 F.S.L. Report Ex.30

10 Serology report Ex.31

11 Written yadi to F.S.L. for analysis of mudamal Ex.32

12 Receipt of F.S.L. regarding receiving muddamal Ex.33

[9] At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of both the parties, the learned Sessions Judge convicted the accused for all the charges leveled against him by judgment and order dated 12.2.2009.

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