JUDGMENT :

A.S. SUPEHIA, J.

1. The present appeals arise out of the judgment and order of conviction dated 18.08.2011 passed by learned Additional Sessions Judge, Amreli in Special Atrocity Case No.33 of 2009 and 56 of 2009, convicting the appellants for the offences punishable under Sections 323, 392, 376(2)(g) and 114 of the Indian Penal Code, 1860 (IPC) and under Section 3(1)(11) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (Atrocities Act).

2. The appellants have been sentenced for the offences punishable under Section 323 of the IPC to undergo simple imprisonment of six months and fine of Rs.1,000/- and in default to undergo simple imprisonment of one month, for the offences punishable under Section 392 of the IPC to undergo rigorous imprisonment of five years and fine of Rs.5,000/- and in default to undergo further simple imprisonment of six months, for the offences punishable under Section 376(2)(g) of the IPC to undergo rigorous imprisonment of life and fine of Rs.10,000/- and in default to undergo further rigorous imprisonment of one year and for the offences punishable under Section 3(1)(11) of the Atrocities Act, rigorous imprisonment of five years and fine of Rs.5,000/- and in default rigorous imprisonment of six months and it was ordered to run the sentence concurrently.

3. The prosecution emanate from the F.I.R., which was registered on 02.02.2009, which culminated into Charge being framed below Exh.10. The case of the prosecution, in nutshell is that on 02.02.2009 in the night at about 1:30 hours, PW-1 i.e. prosecutrix was raped by four accused by forcibly taking her in the open field for six times, after they tied her husband PW-2 on a cot. The accused also looted a Nokia mobile phone and a battery.

4. Initially, the investigation was carried out by PW-26, Police Sub-Inspector, Shri Balwantbhai Prabhatbhai Sonara. Thereafter, the same was undertaken by PW-27, Deputy Superintendent of Police, SCST Cell since the complainant was found to be scheduled tribe.

5. After examining 29 witnesses as well as the documentary evidence, the Trial Court has convicted the accused for the aforementioned offences and accordingly, ordered sentence and fine.

5.1 The jail remarks dated 04.07.2023 reveals that convict-Govindbhai Velshibhai @ Virjibhai Parmar has undergone 13 year and 1 month and 16 days of sentence, whereas convict-Vira @ Virko Velshibhai @ Virjibhai Parmar has undergone 12 years, 9 months and 13 days of sentence.

SUBMISSIONS:

6. Learned advocate Mr.Brahmbhatt and learned advocate Mr.Raval appearing for the accused have submitted that the evidence of the prosecutrix is required to be disbelieved and discarded in view of the medical evidence, more particularly the deposition of Doctor PW-3, who examined the victim and has found that no injury marks were found on her private parts. It is submitted that the prosecutrix has specifically narrated that she was subjected to forcible sexual intercourse by four persons for six times in an open field and looking to such allegations, the medical evidence becomes very relevant for convicting the accused. It is submitted that the trial Court has not appreciated the medical evidence in its true perspective and hence, the conviction is required to be quashed.

7. While inviting the attention of this Court with regard to the identification of the appellants, it is contended that the trial Court has fallen in error in appreciating the veracity of the Test Identification (TI) Parade for convicting the accused for the offences. It is submitted that the victim as well as her husband were not knowing the accused before the alleged offence. It is submitted that the victim was taken at Lathi for identification where she did not identify the accused but subsequently, she identified them at Amreli and prosecution has not brought on record any identification undertaken at Lathi. It is submitted that when the victim herself has stated that there was dark in the filed a