CAV JUDGMENT

(Per : HONOURABLE MR.JUSTICE A.L.DAVE)

These two appeals arise out of a judgment and order rendered by learned City Sessions Court, Ahmedabad on January 30, 2006 in Sessions Case No.351 of 2004, whereunder, both the appellants came to be convicted for the offences punishable under Sections 376(2)(d) and 376(2)(g) read with Section 34 of the Indian Penal Code and were sentenced to rigorous imprisonment for 12 years with a fine of Rs.5,000/- for each offence, in default, to undergo simple imprisonment for one year for each default. The accused were given benefit of set off and both the sentences were ordered to run concurrently. The appellant Babubhai Punjabhai Waghela in Criminal Appeal No.1364 of 2006 was accused no.1 and the appellant in Criminal Appeal No.1749 of 2006 Vitthalbhai Mathurbhai Harijan was accused no.2 before the trial Court. Since these two appeals arise out of a common judgment and order, they are disposed of by this common judgment. For the sake of convenience, the appellants are referred to in this judgment by their original status as accused no.1 (for short 'A1') and accused no.2 (for short 'A2'), respectively.

2. Original Accused No.1, Babubhai Punjabhai Waghela, is reported to be on bail during pendency of the appeal; whereas, Original Accused No.2, Vitthalbhai Mathurbhai Harijan, is in jail.

3. A1 is represented by learned advocate Mr. S.R. Yadav and A2 is represented by learned advocate Mr. Hitesh Padhya, whereas, the respondent - State of Gujarat is represented by learned APP Mr.N.B. Soni in both the appeals.

4. We have heard learned advocates for the parties.

4.1 The main contention that is raised on behalf of A1 is that the prosecutrix has admitted during her cross- examination that the intercourse with A1 was by her consent and therefore, no offence of rape is constituted. He is, therefore, wrongly convicted and the conviction may be set aside.

5. It is contended on behalf of A2 that the place of incident, i.e. the room number, where the incident occurred, is not stated in the FIR. However, the station diary entry reflects that room number. How this has happened, has not been explained by the prosecution. It is also contended that as per the prosecutrix, A2 used force. In Gujarati vernacular, she has used the word 'Jabarjasti' and therefore, it would not amount to intercourse least a rape. It is then contended that since intercourse with A1 was with consent, as admitted by the prosecutrix in her cross-examination, conviction of A2 for gang rape becomes unsustainable. It is also contended that the report of DNA and semen would show that they do not match with DNA or semen of A2. Lastly, it was contended that there was no injury on the person of either A2 or the prosecutrix which would rule out a forced intercourse and the act would come out of the definition of 'rape'. Therefore, the appeals may be allowed and conviction may be set aside.

6. On the other hand, learned APP has contended that the argument that since intercourse with A1 is admitted by the prosecutrix to be with consent and therefore, would not constitute an offence of rape, may be technically correct, but, that may not result in a clean acquittal, so far as A1 is concerned and he has also been convicted under Section

376(2)(d) read with Section 34 of the Indian Penal Code.

6.1 It is also pleaded by the learned APP that contention on behalf of A2 that since there is no gang rape, as per admission made by the prosecutrix of having intercourse with A1 with consent, A2 cannot be convicted for gang rape, again may be technically true, but, A2 is convicted for both the offences punishable under Section 376(2)(g) and 376(2)(d) and therefore, the contention that conviction is not sustainable, may not be accepted.

6.2 It is contended that the prosecutrix's alleging only 'Jabardasti' would mean not intercourse, but, only use of force, is not the correct interpretation in colloquial language being 'Jabardasti' has connotation of a forced inter