VASU RAVA RABARI vs STATE OF GUJARAT

The present criminal appeal has been filed by the appellant - original accused under Section 374 of Code of Criminal Procedure, challenging the judgment and order of conviction and sentence, passed by the learned 9th Additional (Ad-hoc) Sessions Judge, Kachchh-Bhuj (herein after referred to as ''the trial court'') on 21.01.2016 in Special Case (Atrocity) No.27 of 2014, whereby the appellant has been convicted for the offences under Section 328 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years with fine of Rs. 3,000/- in default to further undergo simple imprisonment for two months, and for the offence under Section 452 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years with fine of Rs. 2,000/- in default to further undergo simple imprisonment for one month, and also for the offence under Section 506(2) of Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years with fine of Rs. 2,000/- in default to further undergo simple imprisonment for one month. However, the learned trial Court also pleased to acquit the appellant for the offence punishable under Sections 3.2 5, 3.1(1) and 3.1(10) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities), Act 1989.

The facts giving rise to the present appeal are that on 30.01.2014, while the complainant was taking bath at her home, the appellant slipped into the bathroom from the open space of the top portion and by pointing the knife to the prosecutrix under the threat, made her to consume Phenyl. Thereafter, the accused abused her and threatened to the victim and abused her by insulting her caste. Thereafter, the victim made hue and cry for help. Upon hearing her shouts, her mother Khatuben and elder brother of her father Jerambhai came there to her help. Upon seeing them, the appellant ran away from there. Thereafter, the prosecutrix was taken to the hospital and the complaint was lodged with City B Division Police Station Bhuj. Then FIR was registered. Statement of witnesses were recorded. Place of panchnama was drawn. Yadi was sent for recording the dying declaration to the Executive Magistrate, accordingly the same was recorded. Caste certificate was also tagged with the investigation papers. Then chargesheet was filed before the Court of Chief Judicial Magistrate, Bhuj and that was committed to the Court of Sessions, Bhuj-Kachchh and then charge was framed against the appellant-accused. 2.1 The prosecution to prove the charges levelled against the accused, had examined 13 following witnesses :

Shantilal Nathu Garva Exh. 12

Virambhai Govabhai Mangeriya Exh. 14

Hinaben Govindbhai Mangeriya Exh. 15

Khetuben Govindbhai Mangeriya Exh. 17

Kana Samat Rabari Exh. 18

Babulal Shamjibhai Chauhan Exh. 21

Khetshibhai Jakhubhai Maheshwari Exh. 24

Vivek Mohanbhai Gadhvi Exh. 28

Kishore Kantilal Dataniya Exh. 30

Dr. Anand B. Chaudhary Exh. 31

PSI Kasambhai Husenhbai Exh. 33

Constable Nileshkumar Chandulal Exh. 35

Tejal Chhaganbhai Patel Exh. 43

2.2 The prosecution has also produced various documentary evidences. Statement of accused under Section 313 was recorded in which the accused stated that he is innocent and he has not committed any alleged offence. Arguments of both the sides heard. The trial court after appreciating the evidence on record, had convicted and sentenced the appellant - accused, as stated herein above.

Heard learned counsel Mr. N.L. Ramani for the appellant - accused. Mr. Ramani has contended that in the present case, the learned trial Court has acquitted the accused for the offence punishable under Sections 504 of the Indian Penal Code, 135 of the Gujarat Police Act and under Sections 3.2 5, 3.1(1) and 3.1(10) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities), Act 1989. He further submitted that it was the case of the complainant that the present appellant entered the bathroom from the roof and threatened with knife and made her forcefully to consume phenyl. He further submitted that the said issue is not considered by the trial Court. No question can be arises to consider that due to the force made by the present appellant to the victim to consume phenyl and in the result the accused was acquitted by the trial Court. This appeal is required to be considered in favour of the present appellant - accused. Mr. Ramani submitted that evidence of the victim herself is not proved. The appellant - accused made probable defence to the Court that there was a issue of the marriage of the present appellant and as per appellant''s community, he cannot move outside after the engagement has taken place. The trial Court has not considered the said issue and convicted the appellant - accused. He has further argued that so far as other evidence is concerned, that cannot be considered as a evidence in support of the case of the prosecution. He further argued that only statement made before the Executive Magistrate in the form of dying declaration, that can be also considered at length. In short, he has submitted that the trial Court has committed grave and serious error in convicting the appellant accused and the appellant - accused deserves to be acquitted.

The learned APP Mr. J.K. Shah however has read the charge and evidence of the victim and submitted that a poor lady was taking bath in bathroom, and at that time the appellant entered into the bathroom from the roof and he has committed threat and abused the victim by insulting her caste also. He further submitted that a lady, who is taking bath in the bathroom, how a person can enter the bathroom. He further argued that his such conduct is required to be considered seriously and that he entered with the intention when victim was taking bath in the bathroom, he entered just to commit the said offences. He further submitted that from the evidence of victim and other witnesses, it appears that the appellant cannot be said as innocent, even in the statement recorded under Section 313 of Cr.P.C., the appellant could not disclose any probably defence. The learned APP prayed to dismiss the present appeal.

Having regard to the submissions made by learned advocates for the respective parties, and to the evidence on record, it appears that it is true that the trial Court has acquitted the appellant accused for the other offences and Mr. Ramani, learned counsel for the appellant has smartly argued that the allegations made against the appellant for the offences punishable under Section 504 of Indian Penal Code and 135 of the Gujarat Police Act were not proved and that the story made by the prosecution can be washed out but evidence which is disclosed by the victim, the same is supported by the evidence of witnesses before the trial Court. Even from the FSL report, it clearly transpires that so called phenyl was found. In support of that, the appellant could not establish his probable defence before the trial Court and even today also nothing is found to consider that the learned trial Court has committed serious error in convicting the appellant accused. I am in full agreement with the findings and observations made by the learned trial Court.

In the result, the judgment of the trial Court is confirmed. The conviction and sentence of the applicant - accused imposed vide the judgment dated 21.01.2016 passed by the learned 9th Additional (Adhoc) Sessions Judge, Kachchh-Bhuj in Special Case (Atrocity) No. 27 of 2014, is upheld. The appeal is dismissed accordingly. The sentence imposed by the learned trial Court upon the applicant - accused shall run concurrently. The applicant - accused is directed to surrender before the concerned jail authority within four weeks from today if he is on bail and his bail bond shall stands cancelled. Record and proceedings to be transmitted to the trial Court concerned.