The court confirmed the conviction based on the victim's credible testimony in a rape case, emphasizing that corroboration is not mandatory in such offenses.

JUDGMENT :

A.Y. Kogje, J.

1. Present Appeal is preferred under Section 389 of the Code of Criminal Procedure, 1973, by the appellant-convict against the conviction recorded by the judgment and order dated 28-09-2007 passed by the Additional Sessions Judge, Dhrangadhra in Sessions Case No.22 of 2007. By the impugned judgment and order, the appellant has been convicted for the offence under Section-376 of the INDIAN PENAL CODE and sentenced to ten years of rigorous imprisonment and fine of Rs.5,000/-. He has also been convicted for offence under Section-506(2) of the INDIAN PENAL CODE and sentenced with rigorous imprisonment of one year and fine of Rs.1,000/-.

2. The prosecution was lodged on the basis of FIR being C.R. No.I-126 of 2006 registered on 26-12-2006 by the informant-victim alleging that five days prior thereto in the midnight, accused-appellant had entered into the house of the informant in absence of her husband and while, her children were sleeping and forcibly committed rape on her.

3. Upon conclusion of the investigation on 19-02-2007, the charge-sheet came to be filed for offence under Section-376 and 506(2) of the INDIAN PENAL CODE and the Sessions came to be committed after due compliance with requirement of Section-209 by the Court of Magistrate vide its order dated 16-03-2007 (Exh-8).

4. By the impugned order, the trial culminated into conviction against which, present Appeal is preferred, which came to be admitted under order dated 18-10-2007 by this Court. This Court by order dated 04-12-2007 had dismissed application for permanent bail. Thereafter, the Apex Court in Criminal Appeal No.1756 of 2008 has ordered release of the appellant on bail vide order dated 07-11-2008.

5. Learned Advocate for the appellant has submitted that the case of the prosecution is hardly believable and there is no charge against the appellant for offence under Section-448 of IPC and therefore, entire case of forcible entry into the residence of the victim is ruled out. Learned Advocate has submitted that 10 witnesses have bee examined by the prosecution, who were around the scene of offence, but from their deposition, no support is received by the prosecution theory, as none of the witnesses, though in close proximity got any sign of forcible entry or any alarm that may have been raised by the victim.

5.1 It is submitted that only two witnesses, who are in support of the prosecution are the victim and her husband and they are vitally interested. Therefore, it is submitted that though the prosecution has examined 8 witnesses, these witnesses are not supporting theory of rape.

5.2 Learned Advocate for the appellant on the basis of evidence of the witnesses residing in nearby place and also panchnama of scene of offence has submitted that incident as is described by the victim is virtually impossible, as the other witnesses were in the vicinity and would have easily come to know about any forcible entry into the residence of the victim or would have been alerted by any alarm that may have been raised.

5.3 On the basis of scene of offence, it is submitted that In-laws of the victim were residing in the ground-floor and the location of the staircase is such, that if anybody climbs up into the residence of the victim, In-laws would have been alerted. This witnesses in their deposition have not indicated of any alarm being raised.

5.4 Learned Advocate for the appellant has submitted that evidence of the victim is not reliable as manner in which the incident is described, is not probable particularly, it is her case that her minor children were sleeping in the ‘Varanda’ (Osri), which is adjacent to the main door and any o