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2017 Supreme(Guj) 767

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Z.K. Saiyed, J.
Mahavirsinh Bharatsinh Gharasiya and Ors. - Appellants
Vs.
State of Gujarat - Respondent
Criminal Appeal Nos. 387 and 464 to 465 of 2015
Decided On : 13-04-2017

Advocates Appeared:
For the Appellant : I.H. Saiyed and Ashish M. Dagli
For the Respondents: N.J. Shah

Headnote:Indian Penal Code, 1860 (45 of 1860) - Secs. 376(2), 366, 324, 323, 352, 34, 149 & 120B - In this criminal petition prosecutrix filed a case after elapse of four years alleging offence of gang rape committed against her - as per facts of this case prosecutrix after being gang raped no injury found and in medical history she did not mention the accused's name knowingly therefore accused was mentioned in medical history as "somebody" - further, prosecutrix could have not produced her clothes for medical examination since it was washed before lodging F.I.R. strangely - court after considering all the relevant facts of this case held that prosecutrix version is proven wholly contradictory by medical reports, delay in lodging F.I.R., non-production of clothes, concealment of accused's name, remain unexplained therefore statement and allegations made by her has no reliability - subsequently, conviction reversed.

JUDGMENT :

Z.K. Saiyed, J.

1. All the appeals arise out of the common judgment and order passed by the learned 5th Additional Sessions Judge, Bhavnagar, in the Sessions Case Nos. 5 of 1992, 182 of 1992 and 65 of 1995 dated 18.2.2015, they are decided by this common judgment and order.

2. Present Appeals are preferred by the appellants against the judgment and order passed by the learned 5th Additional Sessions Judge, Bhavnagar, in the Sessions Case Nos. 5 of 1992, 182 of 1992 and 65 of 1995 dated 18.2.2015, whereby the learned Sessions Judge convicted the appellants of Criminal Appeal No. 464 of 2015 and 465 of 2015 and sentenced to undergo 10 years rigorous imprisonment and pay fine of Rs. 20,000/- each, in default, 6 months rigorous imprisonment for the offence under Section 376 (2), 34, 120(B) and 149 of the Indian Penal Code. The accused were further ordered to undergo 5 years rigorous imprisonment and pay fine of Rs. 10,000/- each, in default, to further undergo 3 months simple imprisonment for the offence punishable under Section 366 of the Indian Penal Code, for the offence under Section 343 of the Indian Penal Code, the accused were ordered to undergo 2 years simple imprisonment and fine of Rs. 1000/- each, in default, to further undergo one month simple imprisonment. They were further ordered to undergo 3 months simple imprisonment and fine of Rs. 500/- each, in default, to further undergo 15 days simple imprisonment for the offence under Section 447 of the Indian Penal Code and they were ordered to undergo 3 years simple imprisonment and fine of Rs. 1000/- each, in default, to further undergo 1 month simple imprisonment for the offence under Section 452 of the Indian Penal Code. The appellants were further ordered to undergo 1 year simple imprisonment and fine of Rs. 1000/- each, in default, to further undergo 1 month simple imprisonment for the offence punishable under Section 323 of the Indian Penal Code and for the offence under Section 324 of the Indian Penal Code, the appellants were ordered to undergo 3 years simple imprisonment and fine of Rs. 1000/- each, in default, to further undergo 3 months simple imprisonment as well as for the offence under Section 135 of the Bombay Police Act, they were ordered to 4 months simple imprisonment. Out of the said fine amount, it was ordered to pay Rs. 60000/- to the victim. Learned Sessions has convicted the appellants of Criminal Appeal No. 387 of 2015 and sentenced to undergo 2 years simple imprisonment and fine of Rs. 1000/- each, in default, to further undergo one month simple imprisonment for the offence under Section 343 of the Indian Penal Code and for the offence under Section 447 of the Indian Penal Code, the said appellants were ordered to undergo 3 months simple imprisonment and fine of Rs. 500/- each, in default, to further undergo 15 days simple imprisonment.

3. The brief facts of the prosecution are as under:

3.1 The prosecutrix (PW-2) and PW-3 were married in 1987. They used to stay at Dadva Village, Umrala P.S., Botad Taluka, Bhavnagar District. At the time of the incident, they had a 6-7 month old daughter.

3.2 That on 6/07/1991, PW-3 had gone to Bhavnagar in the morning for some making house-hold purchases. At about 0800hrs, the prosecutrix who was alone at her house, went behind her house to dispose off the house-hold waste. At that time she was abducted and taken to a vaadi at a distance of 3k.m. from her house where she was hit and injured, then disrobed and raped. Thereafter, she was threatened with dire consequences and was again dropped at her residence. She cried the whole day and remained in her house. She told about the incident to her husband PW-3 when he returned back in the evening. At that time, the accused persons along with others came into the house and threatened with dire consequences in case the matter is reported.

3.3 It is also the cas






























































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