IMPORTANT POINT
The absence of direct evidence and the victim's communication difficulties justified the trial Court's lenient sentence for rape, which was upheld by the appellate court.

JUDGMENT :

ILESH J. VORA, J.

1. This enhancement appeal is being filed by the State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973 against the order of sentence dated 06.02.2008 passed by the learned Additional Sessions Judge, Fast Track Court, Bhavnagar, Camp at Mahua in Sessions Case No. 22 of 1996, wherein, the respondent-original accused came to be tried for offences punishable under Sections 452, 376 and 506(2) of the Indian Penal Code, 1860 (old) (‘IPC’ for short). The trial Court, after appreciation of the evidence, convicted the respondent under Sections 452 and 376 of the IPC and he was sentenced as under:

The sentences were to run concurrently.

2. The facts and circumstances, giving rise to this appeal are that, the respondent accused Sherubilal Mubarakbhai was tried by the Sessions Court for the offence of rape. The victim, aged about 20 years, was at relevant time, deaf, mute and mentally unstable. On 29.05.1995, she was alone at her home, as her mother being housemaid had gone to nearby area to do household work. The appellant accused taking advantage of the situation, came at the house of the victim and after entering into the house, he closed the door and committed a rape upon the victim against her will and wish. By way of gesture, the mother was informed by the victim about the act done by the appellant accused, who is residing nearby the house. The widow mother was under stress and after 5 to 6 days of the incident, she came into contact with social worker/PW-4 Induben Ladva, to whom, she had narrated the facts of the incident. PW-4, gave courage to the mother to file a complaint. The mother Shardaben lodged an FIR on 03.06.1995. The victim after registration of the FIR, sent to the hospital for medical examination. The respondent accused was arrested and brought before the doctor for medical examination. The statement of the girl victim was recorded, as the mother was having expertise understanding the gesture and signs of her daughter. In the test identification parade, held before the Executive Magistrate, the victim identified the accused. At the end of the investigation, the chargesheet came to be filed against the appellant-accused.

3. On the basis of material on record, the charge was framed against the respondent at Exh.4, to which he pleaded not guilty and therefore, he came to be tried by the trial Court, accordingly.

4. In order to prove the case against the respondent, prosecution has examined 10 witnesses and exhibited 27 documents to prove its case as per the following table:

Oral Evidence

Documentary Evidence